[Senate Hearing 109-765]
[From the U.S. Government Publishing Office]
S. Hrg. 109-765
FEDERAL BUREAU OF INVESTIGATION OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
----------
JULY 27, 2005
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Serial No. J-109-36
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Printed for the use of the Committee on the Judiciary
FEDERAL BUREAU OF INVESTIGATION OVERSIGHT
S. Hrg. 109-765
FEDERAL BUREAU OF INVESTIGATION OVERSIGHT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
JULY 27, 2005
__________
Serial No. J-109-36
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
46-051 PDF WASHINGTON DC: 2008
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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
David Brog, Staff Director
Michael O'Neill, Chief Counsel
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
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 297
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 311
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C................................................ 36
Hamilton, Lee H., President and Director, Woodrow Wilson
International Center for Scholars, Washington, D.C............. 38
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 9
Russack, John A., Program Manager, Information Sharing
Environment, Director of National Intelligence, Washington,
D.C............................................................ 44
Webster, William H., Partner, Milbank, Tweed, Hadley & McCloy
LLP, Washington, D.C........................................... 40
QUESTIONS AND ANSWERS
Responses of Director Mueller to questions submitted by Senators
Specter, Leahy and Feingold.................................... 54
SUBMISSIONS FOR THE RECORD
Fine, Glenn A., Inspector General, Department of Justice,
Washington, D.C., prepared statement........................... 275
Hamilton, Lee H., President and Director, Woodrow Wilson
International Center for Scholars, Washington, D.C., prepared
statement...................................................... 299
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
prepared statement............................................. 315
Russack, John A., Program Manager, Information Sharing
Environment, Director of National Intelligence, Washington,
D.C., prepared statement....................................... 324
Webster, William H., Partner, Milbank, Tweed, Hadley & McCloy
LLP, Washington, D.C., prepared statement...................... 327
FEDERAL BUREAU OF INVESTIGATION OVERSIGHT
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WEDNESDAY, JULY 27, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, DeWine, Sessions,
Cornyn, Leahy, Biden, Kohl, Feinstein, Feingold, Schumer, and
Durbin.
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 our oversight hearing
on the Federal Bureau of Investigation.
Before proceeding to the hearing at hand, I thought it
would be useful to make a comment or two about the scheduling
on the confirmation hearings of Judge Roberts. I had sent word
to Senator Leahy earlier this morning that I wanted to spend a
few minutes on that subject because we were being questioned
about it incessantly. And Senator Leahy and I since the middle
of last week, right after the appointment, have been talking
about it repeatedly to try to work out an agreeable schedule. I
compliment the distinguished Ranking Member for his cooperation
and the way we have worked together in processing the work of
the Committee, and to the maximum extent possible, that is what
we want to continue to do.
We have an obligation, as I see it, to finish the
confirmation hearing so that the nominee is in place, if he is
confirmed, on the first Monday in October, which is October the
3rd.
My preference has been to start in September, but I have
said from the outset that so far as I was concerned, I was
flexible on the subject as to either August or September,
depending upon all the circumstances. Notwithstanding the
preference which I have expressed, I believe there is a duty to
start the hearings at a time best calculated to finish by the
October 3rd date.
I talked to Senator Leahy yesterday repeatedly and posed
the question: Is it realistic to get a commitment that we will
vote on Judge Roberts by September 29th? And absent that
commitment, it seems to me that we have to start in August, on
August 29th. And it may be that we cannot finish by October 3rd
starting on August 29th. There are too many imponderables which
we have seen, and the Senate in large measure functions on what
each individual Senator is willing to do. And one Senator can
throw a monkey wrench into the process, and we have seen from
experience--Senator Leahy has been involved in ten confirmation
hearings and I have been involved in nine; Senator Grassley has
been involved in nine--that there are many unpredictable things
which arise.
We have already had discussions about reviewing the
records, and I note yesterday that the eight Democrats on the
Committee sent a letter to the White House, which I am not at
all critical of. I think it is perfectly appropriate. But that
sort of represents the differing views which Pat Leahy and
Arlen Specter will have no matter how closely we coordinate.
And we cannot control our committees. We cannot control our
caucuses. All we can do is our very best.
But the nub of my conclusion is that duty comes ahead of
preference, and unless there is a commitment--and, again, I
repeat, I am not asking for a commitment because I do not think
it is realistic to get a commitment, because if Pat and I could
solve it, we have no problems. We would come to terms promptly.
But we do not control the whole situation. But absent that kind
of a commitment, it seems to me that duty will call on us to go
ahead with August 29th.
Let me yield to my distinguished Ranking Member now.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Again, I think if it was Senator Specter and
myself, we could easily work this out. We could easily do it in
September. I still think that is the better course. One, just a
purely personal thing is that we have--it is not the members of
this Committee will be back here in August, but there are
dozens upon dozens--actually hundreds of people who work for
the Senate, staff and so on, hundreds of members of the press,
others who have determined that as a time that is always open,
a time they could take their children back to school, a time
they could actually spend time with their families.
When I first came to the Senate, the only time you had a
recess that you could count on was in the winter months because
many of the older members wanted to go off to warmer climes. Of
course, that did nothing for those with children.
We then around the time I came to the Senate initiated the
idea of having an August break, and it is the one time where
families with children--and not only members but the hundreds
upon hundreds of staff who work here--could plan time to
actually be with their children. And the staff members work a
lot later than we do. The press and everybody else could plan
on that time. I think that that is something we ought to be
considering if this is going to be a family-friendly Senate, as
we have been promised it would be, or not.
We are talking about somebody who is going to serve, if
confirmed, to the year 2030, 2040. To spend a few days longer
to make sure we do it right does not create a problem in my
mind. If somebody is going to be there to the year 2030 to
2040, a few days one way or the other to make sure we get it
right makes some sense to me.
Now, I am convinced today, with the record we have before
us, that there will be a vote by the end of September. The
irony is the vote will probably be the exact same day, whether
we hold a hearing in August or whether we hold a hearing in
September. The difference is, of course, families' lives would
be disrupted substantially in August. They would not be
disrupted as much in September. But the end result would be the
same. And for the life of me, I cannot understand why we should
not do it this way.
Now, we have worked cooperatively, and I commend the
Chairman. As he knows, if the other party has to be in control,
there is nobody I would rather have as Chairman than he. He has
handled this as the smartest lawyer in the U.S. Senate, as he
is. He has also handled this in the best manner of the bar to
make sure we do it right. But I do worry that there are those
special interest groups on the right and the left who want to
make a game out of this when, after all, it is only the members
of this Committee that are going to have the initial vote. I
worry that--I saw a comment by the White House press secretary
today suggesting that it is outrageous I might want to see
something the President has not even read.
Now, I know that the White House press secretary much
prefers talking about Karl Rove, but I would suggest to him
that that is probably an unrealistic standard to set, that I
can only read things that the President has read, because I
doubt very much the President, whom I respect greatly, has read
Judge Roberts's opinions, to give you one example. I intend to
read all of Judge Roberts's opinions. I do not expect the
President has read all of Judge Roberts's opinions, nor would I
expect him to. But these are the kinds of semantic games that
we ought to leave to the side. Let the Chairman and me work
this out.
So I would again hope that we would start in September. You
know, the Republicans control the Senate and, of course, they
can decide to do it in August. I think it will give the
impression that we are rushing to something before we are even
prepared to go to a hearing. And it would also, of course,
disrupt many, many, many hundreds of families if we do it that
way. The irony is the final vote will still be on the same day,
whether we do it in August or whether we do it in September.
So I wish all the conflicting groups would back off,
including the Senate leadership and the White House, and let
Chairman Specter and me work this out. I have an enormous
amount of respect for the Chairman. He keeps his commitments to
me and to others. I think if it is left to us, we will have a
hearing the Senate can be proud of.
Chairman Specter. Thank you very much, Senator Leahy.
Just one final word. We are very much aware of the
commitments made in August, and in making this statement with
all the staff here, I thought it would be better if the staff
heard it from the Chairman and the Ranking Member than just
reading about it in the newspapers and having a feel for what
we are doing and what we are trying to accomplish. If we
adjourn on the 29th of July, we will have 31 days until August
the 29th. That does not alter my preference, nor does it alter
my duty. And Senator Leahy may be exactly right that we may
vote on the same date no matter when we start. And I am not
unaware that around here you get a lot more done customarily in
3 hours cooperatively than in 3 days or 3 weeks. But at the
same time, that extra week could be determinative, and that is
what is on my mind.
Thank you for coming in, Director Mueller, and the
indulgence of everyone in talking about the Roberts hearing,
which is sort of taking a lot of--the whole Roberts proceeding
is sort of taking a lot of oxygen out of Washington. But the
number one problem in America and the world remains terrorism,
and the issue of avoiding another attack is the most important
issue facing the Government of the United States to protect its
people.
We have met with Director Mueller on a number of occasions
to talk about the changes which have been going on in the FBI
to see what is happening. We all know that there were many
signals before Director Mueller's watch which were not focused
on: the Phoenix report, the Minneapolis report with Coleen
Rowley, the wrong standard for probable cause, the information
on Zacarias Moussaoui, the information that the CIA had about
terrorists in Kuala Lumpur not passed on to Immigration. And we
are all as determined as we can be to avoid that happening
again. But it is going to take a lot of hard work, and a lot
has already been done.
This is the first in a series of oversight hearings. There
have been very strong criticisms by both the Weapons of Mass
Destruction Commission and the 9/11 Commission. The WMD
Commission found resistance to cultural changes as the FBI
transitions to a ``hybrid law enforcement and intelligence
agency.'' The WMD Commission was critical about the FBI still
putting law enforcement ahead of intelligence gathering. The
Commission noted that the Counterterrorism Directorate has seen
six directors since September 11th, and the New York field
office, where much of the FBI's counterterrorism efforts have
been focused, has seen five directors since 9/11. Those are not
encouraging signs.
The WMD Commission concluded that the FBI ``is still far
from having a strong analytical capability to drive and focus
the Bureau's national security work.'' Nearly one-third of the
FBI's intelligence analyst jobs remained unfilled in 2004
because of rapid turnover and other problems. The 9/11
Commission found that 66 percent of the FBI's analysts were not
qualified to perform analytical duties.
That is just the top of the iceberg, and I will put the
rest in the record in order to save time and stay within my
opening statement 5-minute limit. There were faults found on
the intelligence operations, and then you have the issue of
technology, a subject that I personally have discussed in some
detail with Director Mueller. And when you take a look at the
Virtual Case File system, part of the FBI's technology
modernization product intended to replace the Bureau's obsolete
case management system, after spending 3 years and $170 million
on the Virtual Case File system, the FBI declared it to be a
complete failure.
Director Mueller, we appreciate what you are doing, and we
have great confidence in you personally. And it is a gigantic
task, and we want to be helpful to you. But there has to be
some way to move through the tangle of problems because of the
intensity and importance of our duty to prevent another attack
and to be in a position to put all the pieces together. And had
all of the so-called dots been on one format, I think 9/11
could have been prevented. And I know that is your most fervent
wish and what you are working for, as are we.
My red light has not gone on yet--there it goes.
Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman. I am glad you are
holding this. I think it is a good hearing to continue our
oversight. I welcome Director Mueller and the others, and I
appreciate the time I spent with the Director a couple weeks
ago. We went into this in some detail.
As he knows, I mentioned the FBI translation program. I
have been following this for years. I authored the PATRIOT Act
provision aimed at facilitating the hiring of more translators
at the FBI. The Inspector General this morning released an
update to its 2004 audit of the translation program. He gives
credit where credit is due, says the FBI is making progress. I
know that the Bureau is working hard to address this talent. I
am frustrated, however, that it takes the Bureau on average 16
months to hire contract linguists.
I am aware of the number of hours of unreviewed
counterterrorism audio is increasing. I know all of have this
horrible sinking feeling, what happens if there are plans for
an impending attack and we do not translate the audio until
some time after the attack? None of us want that. I know that
the Director does not. But I worry that we are not moving fast
enough to get those translated. All of us want to see this
program succeed. Everybody on this Committee does.
The FBI is the lead agency responsible for the Terrorist
Screening Center. It made significant progress, but the
Inspector General shows that their operations have been
hampered by inadequate training and rapid turnover among the
employees staffing the 24-hour call center, and, of course,
deficient technology.
They were charged with what I think was an enormously
difficult charge of consolidating 12 terrorist watch lists, but
we have seen what happens when inaccuracies come in there. We
have heard stories of planes being diverted because terrorist
suspects on the no-fly list were allowed to board the airplane.
If a person is so dangerous that he or she is properly on a no-
fly list, then mid-flight is much too late to respond. On the
other hand, we have seen so many people that they or their
children might have the same name and are constantly being
stopped--people that have had top secret clearance, people who
have had distinguished military careers, Senator Kennedy. Of
course, these Irish terrorists all look alike, but Senator
Kennedy has been stopped numerous times from going on the same
flight that he has been taking for 30 years because he is on a
no-fly list.
That does not give me a great deal of confidence that we
are necessarily getting the right people. It is also, of
course, horribly disruptive to people who get their name on
there by mistake and then cannot get their name off. If they
have a business where they have to travel around the country,
they are loyal Americans losing their livelihood.
I am displeased with the FBI's handling of the Virtual Case
File. The Chairman has already talked about it, but I feel they
have bit off more than they can chew. They did not develop a
finite and final list of project requirements, and they poorly
chose to issue a contract without putting penalties in there.
But what really bothered me is that the Congress, and this
Committee in particular, was not given the full story of how
poorly the project was progressing until it collapsed under its
own weight. Not only are we out well over $100 million, but we
are out several years of time, precious time that was lost,
when we should be fighting terrorism.
I am disturbed by recent reports from GAO that an audit of
the project has been substantially delayed because the FBI has
taken weeks to schedule meetings and months to produce
documents. I think there should be a lot fuller cooperation by
the FBI with the GAO. They are not your enemy. They are your
friends.
With respect to the VCF's replacement program, I did ask
the Director at a recent hearing about costs. He said he would
rather discuss the issue in private citing procurement
sensitivities. When we talked in private, he still did not want
to reveal those figures. I would just state this: There have
been figures in the media. I have not been able to get them.
Somehow the media has had some figures. I can tell you right
now that if the costs are anywhere near what the media is
reporting, I think you are going to have a real problem with
this Committee.
So a lot has been undertaken since September 11th. The
threats have changed. The Bureau is adjusting in several key
areas. They have made some significant strides. I do want to
underscore that. There is a lot of work to be done. We are not
the enemy up here, even though some feel we are. We really do
want to work together. This Committee has given an enormous
amount of money, authorized an enormous amount of money for the
FBI to make it better.
Thank you, Mr. Chairman.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
We are going to proceed out of order because Senator
Grassley chairs the Finance Committee and has a very pressing
duty and is going to have to depart. He has been on this
Committee since elected in 1980, sat next to me all that time.
Quite a burden for Senator Grassley. And as I have just
whispered to him and will repeat out loud, nobody has been more
diligent on FBI oversight in the 25 years we have been here
than Senator Grassley has. I may be second or may not be
second, but there is no doubt that Senator Grassley is first.
Senator Grassley?
Senator Grassley. Thank you very much.
Director Mueller, maybe it is not fair for me to go first
because you may have had something in your opening statement
that would satisfy me, but I do have to chair the hearing.
I have been asking a lot of questions about terrorist fund
raising cases that have been developed by the Immigration and
Custom Enforcement there in Houston, and so far your
headquarters at FBI and the field office at Houston have been
giving contradictory answers. Essentially they have been
pointing fingers at each other. Headquarters has blamed the
field for mishandling the case, and the field has not accepted
the blame. And since the FBI has refused to provide access to
additional witnesses who might clear up the contradictions that
are very obvious, how do you propose to resolve the conflicting
statements? I think you are in a position to do it. They need
to be resolved. And if it is determined that someone put the
FBI's interest in turf battles ahead of the fight against
terror, what would you do to hold that person accountable?
Mr. Mueller. Southeastern, we have had discussions on this,
and I know our staffs have had lengthy discussions, and I am
also well aware of your interest. It appears to be a difference
of recollection between at least two individuals that is
irreconcilable. It is a difference in recollection relating to
the timing of bringing information together in order to
undertake an application.
We take full responsibility for that delay. There was a
delay. The difference in the timing I think was somewhat--in
terms of the difference in recollection as to the timing, it is
inconsequential in the sense that there was a delay; there
should not have been a delay. My expectation is that as a
result of this, we will not see this occurrence again. We have
put into place procedures to assure that it does not happen. I
do think it was a unique case, a unique set of circumstances,
but we are determined that these circumstances not repeat
themselves.
There was a delay in putting together information from two
areas. It should have been put together sooner. Ultimately, I
believe that the appropriate action was taken and that the case
is ongoing with the full support of both agencies.
Senator Grassley. Director Mueller, I think it is difficult
maybe for you to solve this. I can solve it if I just get a
chance to see the people I want to see and question the people
I want to question. And I think that that is only fair that we
get to the bottom of this, and I think it is part of
Congressional oversight to get the job done. I think it is a
help to you, and I think we need to get to the bottom of it.
On another matter, more than a month ago I had the
opportunity to write the attorney for Basam Yusef, an Arab-
American agent who is suing the FBI for discrimination, to
request that he meet with my staff to provide information about
problems in the Counter terrorism Division. His attorney sought
permission from the FBI, but has not been given a clear answer
on this. Given the FBI's recent attempt to fire another agent,
Bob Wright, Mr. Yusef is afraid to honor my request without
clear permission from the FBI.
We need a clear answer. Will you allow Mr. Yusef to meet
with staff or not? And can you assure me that if Mr. Yusef
complies with my request that the FBI will not retaliate
against him? What we need is the cutting through of red tape
within the FBI to get answers to our questions about whether or
not this person can meet with my investigative staff, and we
need this red tape cut crossways, not lengthways.
Mr. Mueller. Well, Senator, I think you are aware that I
have been, I believe, cooperative in allowing persons to talk
to your office. There is a protocol that one has to go through
that gives some assurance that issues that are classified will
be and continue to be appropriately classified. I would be
happy to go back and see where we are in that process.
You alluded in your statement to the recommendation with
regard to Robert Wright. As I believe I explained to you, I am
concerned about allegations of retaliation. I requested that
the Justice Department do the investigation in the allegations
he raised. When that came back to us, there were additional
concerns that we had. We made a recommendation. But I think I
bent over backwards in allowing Mr. Wright to appeal that
recommendation to the Department of Justice.
I can assure you that we will not retaliate against Mr.
Yusef, have not retaliated against Mr. Wright, and have bent
over backwards to give the actuality and, indeed, including the
appearance of fairness. I know that you have the letter that
was sent by us explaining to Mr. Wright the circumstances under
which we made that recommendation, which we believed to be
appropriate but we have given him that additional right to
appeal to an independent outside arbiter.
Senator Grassley. Well, then you are going to look at my
opportunity to see Basam Yusef without retaliation?
Mr. Mueller. Yes, absolutely. I can assure you there will
be no retaliation. The circumstances under which the discussion
is had, I will have to review where we are in that process.
Senator Grassley. Thank you.
Chairman Specter. Thank you very much, Senator Grassley.
Just one concluding note. Senator Grassley and I are the
two survivors of 16 Republicans elected in 1980, the last two.
We have Senator Dodd on the Democratic side, but it is a small
group which remains.
Thank you very much, Senator Grassley, and without
objection, we will put your opening statement in the record.
Senator Grassley. Thank you.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Specter. We turn now to Director Mueller for his
opening statement, really an extraordinary record, educational
background, professional background, public service, graduate
of Princeton University, 1966, international relations from New
York University in 1967, law degree from the University of
Virginia, served as an officer in the Marine Corps, led a rifle
platoon in Vietnam, recipient of the Bronze Star, two Navy
commendation medals, the Purple Heart, and the Vietnam Cross of
Gallantry.
Professionally, his career has been equally extraordinary,
was United States Attorney in both the Northern District of
California and in Boston, served as Acting Deputy Attorney
General right before he became the FBI Director. And I think
perhaps most noteworthy of his entire career, after having held
lofty positions, he returned to public service as a senior
litigator in the homicide section of the District of Columbia
U.S. Attorney's Office, which is really remarkable, attesting
to the fact that the best job, notwithstanding all these fancy
titles, is being an assistant prosecutor.
Director Mueller, thank you for the job you are doing, and
we look forward to your opening statement.
STATEMENT OF ROBERT S. MUELLER III, DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Director Mueller. Thank you, Mr. Chairman, and thank you
for having me here today. As you well know, having been one
yourself, that is the best job one can have as an assistant
prosecutor, particularly doing a service in cases that are so
meaningful--
Chairman Specter. Senator Leahy just leaned over and said
he agrees.
Director Mueller. Another assistant prosecutor.
Thank you for allowing me to appear before you today, and
let me start by updating you on recent changes within the FBI
and additional changes that we anticipate in the near future.
Let me start by recognizing that last month the President
announced that he had approved certain recommendations of the
WMD Commission. And while the Commission had recognized in its
report that we have made substantial progress in building our
intelligence program, as I believe, Mr. Chairman, you pointed
out, it expressed concern that our existing structure did not
give the Director of National Intelligence the ability to
ensure that our intelligence functions are fully integrated
into the intelligence community.
At the direction of the President, we are currently
prepared a plan to implement a national security service within
the FBI. While the details of this plan are currently being
discussed with both the Department of Justice and the Office of
the DNI, I would like to share with the Committee the broad
concepts under which this service is being developed.
One of our guiding principles since September 11th has been
that the FBI's intelligence program be integrated with our
investigative missions, and our FBI national security service
will build on the progress of the Directorate of Intelligence
and further promote this integration.
The integration of our intelligence and investigative
missions ensures that intelligence drives our investigative as
well as our intelligence operations. And this integration
enables the FBI to capitalize our capability, our capacity to
collect information and to extend that strength to the analysis
and production of intelligence.
The national security service and intelligence service will
be put together by combining our counterterrorism and
counterintelligence components, and put it together with our
Intelligence Directorate under the supervision of a single
official who will report to the Deputy Director and to myself.
The development of a specialized national security
workforce is a key component of this new service, and we will
develop this workforce through initiatives, many of which are
already in place, but those initiatives are designed to
recruit, hire, train, and retain investigative and intelligence
professionals who have the skills necessary to the success of
our National intelligence, national security programs.
Finally, the creation of a national security within the FBI
will enhance our ability to coordinate our National security
activities with the DNI and with the rest of the intelligence
community. The single FBI official in charge of the service
will be able to ensure that we direct our National security
resources in coordination with the DNI and the Attorney
General. Also, as we all know, the DNI will also have authority
to concur in the appointment of this official.
Mr. Chairman, this is a very broad outline of our plans for
a national intelligence service within the FBI, and I am happy
to provide the Committee with additional details as the
implementation of this initiative progresses.
Mr. Chairman, you mentioned the Foreign Language Program,
as has Senator Leahy. Let me just comment, if I could, on the
findings of the Inspector General in this regard.
We welcome the input of the Inspector General. His findings
have been exceptionally helpful in giving us guidance on where
we need to improve, and I want to say that I appreciate the
work that he spends and the guidance that he gives.
I will tell you that prior to September 11, 2001,
translation capabilities, like many of our other programs, were
decentralized and managed in the field. Since September 11th,
we have established a Language Services Translation Center at
FBI headquarters to provide centralized management of the
Foreign Language Program. This provides a command and control
structure at headquarters to ensure that our translator
resource base of over 1,300 translators, distributed across 52
field offices, is strategically aligned with the priorities set
out by our operational divisions and with the national
intelligence priorities.
We have now integrated Language Services into the
Directorate of Intelligence. This integration fully aligns our
FBI foreign language and intelligence management activities
across all of our field offices.
We, in addition, have instituted a prioritization process
to ensure that foreign language collection is translated in
accordance with a clear list of priorities. The Foreign
Language Program receives regular weekly updates to FISA
prioritization, and we are careful to ensure that the FBI's
priorities are consistent with those of the intelligence
community.
I know, as you mentioned, Senator Leahy, you and we are
concerned whenever there is a backlog, and the report of the
Inspector General indicates a current backlog. I will tell you
that we have triaged and prioritized so that we have our
highest priority counterterrorism intelligence intercepts
reviewed generally within 24 hours. And this prioritization and
triage process has helped us to reduce that accrued backlog.
As to that accrued backlog, if you review it you will see
that much of it is what is called white noise from microphone
recordings, and there is another piece of that backlog that is
attributable to highly obscure languages and dialects that we
are working hard to recruit translators to address.
Mr. Chairman, I would also like to address some of the
Inspector General's concerns about our hiring and vetting of
linguists. Since September 11th, we have recruited and
processed more than 50,000 translator applicants. These efforts
have resulted in the addition of 877 new contract linguists and
another 112 language analysts, less the attrition. The FBI has
increased its overall number of linguists by 69 percent with
the number of linguists in certain high priority languages,
such as Arabic, increasing by more than 200 percent.
At the same time, however, we must ensure translation
security and quality. All FBI translator candidates are subject
to a pre-employment vetting process that eliminates almost 90
percent of those who apply.
I will tell you that more than 95 percent of the FBI
linguists are native speakers of their foreign language and
hold Top Secret security clearances. Their native-level
fluencies and long-term immersions within a foreign culture
ensure not only a firm grasp of colloquial and idiomatic
speech, but also of heavily nuanced language containing
religious, cultural, and historical references. Beyond these
qualities, over 80 percent of our FBI linguists hold at least a
bachelor's degree and 37 percent hold a graduate-level degree.
These qualities make them extremely valuable to the FBI's
intelligence program, but also, unfortunately, particularly
attractive to other employers who are seeking these scarce
skill sets.
Mr. Chairman, we recognize that the FBI's Foreign Language
Program is essential to our success, and we appreciate the
oversight by the Committee. We appreciate the Inspector General
indicating we have made progress. We understand that we have to
make more progress and believe we are on track to do in those
areas pointed out by the Inspector General.
Let me spend just a moment, Mr. Chairman, on technology.
As you or as anybody who looks at the intelligence
community, indeed, the law enforcement community, we recognize
the importance of collecting, analyzing, and disseminating
information both internally and with other intelligence and law
enforcement agencies. We have made since September 11th
modernization of our information technology a top priority and
have developed, I believe, in the last 2 years a coordinated,
strategic approach to information technology under the
centralized leadership of the Office of Chief Information
Officer.
I will not go into the details because my prepared
statement covers much of that, but I do want to point out that
our proposed information management system, which we call
Sentinel, is a form of a ``service-oriented architecture,''
which is a suits of services geared to evolve with our new and
emerging needs. This Sentinel project differs in many respects
from Virtual Case File in that it will serve as the platform
from which services can be gradually deployed, each deployment
offering added improvements. Sentinel will pave the way,
starting with our legacy case management system, for subsequent
transformation of all legacy applications to modern technology
under our enterprise architecture.
As we briefed the staff yesterday, the staff of the
Judiciary Committee, and as I believe they heard, we are
planning to deploy Sentinel in four phases over the next 40
months. I know that, as Senator Leahy pointed out, he is
interested in the total cost of the Sentinel program. I must
say that at this time cost estimates are considered ``source
selection information'' as defined by the Federal Acquisition
Regulations, meaning that any public disclosure might
improperly affect the bidding process.
I will assure you, Mr. Chairman, and the Committee that the
FBI is committed to obtaining the best product at the lowest
cost to the American people, and we do not want to prematurely
disclose information which may influence bids from potential
contractors.
I might turn just for a second to the issue of our human
resources, which have already been mentioned by yourself, Mr.
Chairman, and by Senator Leahy.
The men and women of the FBI are clearly our most valuable
asset. In order to continue to recruit, hire, train, and retain
quality individuals for our expanding human capital needs, we
have undertaken a re-engineering of our human resource program.
We have retained the services of outside consulting firms
to review business processes for selection and hiring, training
and development, performance management, intelligence officer
certification, retention, and career progression.
We have hired an executive search firm to identify a chief
human resources officer for the FBI, an officer who has
significant experience in the transformation of human resources
processes in a large organization, not necessarily a
governmental organization.
At the same time, we have made substantial progress in
building a specialized and integrated intelligence career
service comprised of intelligence analysts, language analysts,
physical surveillance specialists, and special agents.
Finally, we have developed a special agent career path that
will be implemented in October 2005. These career paths will
take into account the background and experience of the agent in
determining the agent's future career path in one of five
programs: counterterrorism, counterintelligence, intelligence,
cyber, or criminal. This policy will promote the FBI's interest
in developing a cadre of special agents with subject matter
expertise.
These are just a few of the initiatives underway to improve
the FBI's human capital and to ensure that we develop a
workforce that is prepared to meet the challenges of the
future.
Finally, Mr. Chairman, when I last appeared before the
Committee, my prepared testimony included a request for
administrative subpoenas in support of our counterterrorism
efforts, and I was remiss in not including that request in my
oral remarks and would like to very briefly take the
opportunity to do so now.
As you know, the FBI has had administrative subpoena
authority for investigations of crimes from drug trafficking to
health care fraud to child exploitation. And yet when it comes
to terrorism investigations, the FBI has had no such authority.
We have relied on national security letters and FISA orders
for business records. And although both are useful and
important tools in our National security investigations,
administrative subpoena power would greatly enhance our
abilities to obtain information. Administrative subpoena
authority would be a valuable complement to these tools and
would provide added efficiency to the FBI's ability to
investigate and disrupt terrorism operations and would also
assist in our intelligence-gathering efforts.
I would like to stress that the administrative subpoena
power would allow and provide the recipient the ability to
quash the subpoena on the same grounds as the recipient of a
grand jury subpoena would have the opportunity to contest such
a subpoena.
Now, in closing, Mr. Chairman, I would like to address the
concern expressed by some, including yourselves, that the FBI
is resistant to change. One would have to admit that there are
those in our organization who would adopt change more slowly
than others. But I will tell you, in the 3\1/2\, almost going
on 4 years that I have been with the FBI, I have witnessed the
willingness of the vast majority of FBI employees to embrace
change and to welcome recommendations for improvement wherever
those recommendations come, whether it be Congress, the 9/11
Commission, the WMD Commission, or the Inspector General.
Since the terrorist attacks of September 11th, the pace and
breadth of change within the Bureau has been significant.
Occasionally I liken it to trying to change the tires on a car
as it hurdles at 70 miles an hour down the road. But examples
of this change are the following: We have nearly doubled the
number of agents working counterterrorism investigations from
2,500 to 4,900. We have established 103 Joint Terrorism Task
Forces across the country. We have embedded intelligence
elements in each of our 56 field offices; they are called field
intelligence groups. These did not exist prior to September
11th. We have established a Directorate of Intelligence to
manage all intelligence production activities and intelligence
resources. And we have collocated many of our counterterrorism
personnel with counterterrorism personnel from other agencies,
State and local agencies, in order to better address the global
nature of the terrorist threat.
And as a result of these changes and the commitment of FBI
employees to that number-one priority that you have already
articulated--that is, protecting the American people from
another terrorist attack--we have over the past 3\1/2\ to 4
years experienced a number of counterterrorism successes. While
most of these successes remain classified or are pending
matters, because of the continuing intelligence we are able to
develop from them, the following are a few that you are well
aware of:
The arrest and guilty plea of a group in Lackawanna, New
York, pleading guilty to providing material support to al Qaeda
after undergoing training in an al Qaeda in Afghanistan;
The arrest and guilty pleas of five men and one woman in
Portland, Oregon, on a variety of charges, including money
laundering and conspiracy to levy war against the United
States, after several of them attempted to enter Afghanistan
after September 11th in order to fight the American forces;
The arrest of Jose Padilla for planning activities relating
to the deployment of--or undertaking a terrorist attack within
the United States;
The arrest of Lyman Farris, who, after admitting to carry
out surveillance and research assignments for al Qaeda, was
sentenced to 20 years in prison for providing material and
support.
These are just a few of those instances where, working
together with others, we have been successful over the last
several years. I will say that any success we have had, Mr.
Chairman, is attributable to the dedicated men and women who
are serving in our Federal, in our State, in our local, and in
our tribal law enforcement and intelligence communities. These
successes were also the result of the cooperation and
assistance offered by the Muslim-American and Arab-American
communities within the United States who have provided
tremendous support to our efforts. These individuals and the
Muslim-American and the Arab-American community share our
desire to prevent any terrorist attack from occurring on our
shores again. And these successes were the result of the men
and women of the FBI who have embraced our changing mission,
worked to enhance our intelligence capabilities, and adapted to
new ways of doing business.
We still face the threat of terrorist attacks. We still
face other threats that will continue to evolve. And as those
threats evolve, so will the FBI as it strives to meet the
challenges of the future while at the same time upholding the
civil liberties we cherish.
Mr. Chairman, members of the Committee, I thank you again
for the opportunity to discuss these issues concerning the
transformation of the FBI, and I would be happy to answer any
questions you have.
Chairman Specter. Thank you very much, Director Mueller,
for your opening statement. We will now proceed with the
Senators asking questions on our customary 5-minute round.
Let me start with the ultimate questions, Director Mueller.
How secure is our homeland from a terrorist attack? Or, stated
differently, what is the imminence of another terrorist attack
on U.S. soil?
Director Mueller. We are, I will say, far safer than we ere
before September 11th, and that is attributable to, I believe,
three factors.
The first is that we have removed in the wake of September
11th the sanctuary that al Qaeda had in Afghanistan, a
sanctuary in which al Qaeda could plan, train, recruit, and
coordinate, as was the case with the planning, the
coordination, the recruiting for the September 11th attacks. We
removed that as a sanctuary for al Qaeda to utilize.
Secondly, a number of agencies, particularly the CIA, have
been successful many times over, much of that which is not
recorded and in the public, many times over working with our
counterparts overseas to take off the leadership of al Qaeda,
to detain, incarcerate, and remove them as capable leaders in
the al Qaeda network: Khalid Sheikh Mohammed, Abu Zubaida,
Hambali. A number of the leadership of al Qaeda has been
removed as a potential source of managerial skill,
organizational skill, and that is attributable to our brothers
and sisters in other agencies, but it should not be overlooked.
And, finally--
Chairman Specter. Director Mueller--
Director Mueller. A final point, if I can just make one
more point, and I will make it brief, and that is what--
Chairman Specter. Okay. There are 3 minutes and 13 seconds.
Director Mueller. I will do it in 10. The work that has
been done with State and local law enforcement to work together
to assure that our communities are safe. That has been
tremendously important.
Chairman Specter. Director Mueller, we have reviewed the
problems in the Virtual Case File system with $170 million
being expended without any results. We are now advised that on
the new Sentinel system, we are projecting a date of 2009,
which is a long ways away. We saw the lack of coordination on
what information we had on the FBI Phoenix report, on the
Minneapolis report, on Zacarias Moussaoui, on Kuala Lumpur and
the CIA. Is it realistic to be able to put all the dots on the
map and all the pieces together, which needs to be done in
order to prevent another attack, if we do not have the
technology in place? And how can we look for a date as far away
as 2009 considering all the money which has been invested and
the lack of results so far?
Director Mueller. Well, the Trilogy project had three
components to it: new computers, new networks, as well as
Virtual Case File. We were successful on the first parts of the
Trilogy project. We have the new computers. We have the
networks that support it. The Trilogy project did not at that
time contemplate the database structures that we felt were
necessary in the wake of September 11th to put into place to
assure that counterterrorism information was in one place. We
have developed--
Chairman Specter. Do we need that database system in order
to pull all these bits of information together to prevent
another attack?
Director Mueller. We do, and we have put it together since
early in 2002. We have the database structure. We have millions
and millions of documents relating to counterterrorism, all of
our documents relating to counterterrorism in an up-to-date,
state-of-the-art, relational database structure.
The Sentinel project is due to--our hope is that we will
have the contract in place by the end of this year. We expect
that within a year afterwards, we will have the first
deliverables. It is four stages. And the year 2009, it would
take approximately 40 months--yes, approximately 40 months as
we now anticipate to put into place the various components that
we believe will be in the Sentinel project. And as--
Chairman Specter. One final question, Director Mueller,
before my 5 minutes expire. There have been reports about the
New York Police Department recruiting immigrants from Asia,
Africa, the Pacific Islands where they have developed analyst
and translator capabilities by drawing upon the immigrants
familiar with languages and cultures under survey. Has the FBI
undertaken a similar program?
Director Mueller. Well, we certainly have undertaken a
broad-based program to bring on board language specialists that
have the full capabilities across all of the languages that we
need. Some of them may well be immigrants. I will tell you,
however, we have a very high standard for hiring within the FBI
in terms of the clearances that are required to be obtained in
order to get access to the information that we put before our
translators.
But, yes, we have an active effort to recruit and bring in
persons, particularly with persons who have information or
capabilities in unique and very specialized dialects.
Chairman Specter. My red light went on in the middle of
your answer, so I will now yield to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Director Mueller, there are areas where I have been
critical, as others have up here, of parts of the efforts down
at the Bureau. But you and your leadership team and the hard-
working men and women at the Bureau deserve the constant
appreciation of all Americans for all you do, and also for the
sacrifices that many of you make to do it.
Now, after 9/11, the people of the FBI have put in untold
overtime hours under great pressure. They have had to adjust to
duties they never anticipated before that. And I compliment you
and the people who work with you for doing that. And I think
that it is also important that we have the oversight we do
because I think it helps make everybody more effective. And
that is what you and I and the Chairman and everybody else here
are united in the same thing. We just want America to be safer.
We want the bad guys behind bars. We want Americans to be safe.
Now, the consolidated watchlist uses, as I understand it,
four risk-based handling codes. They say how law enforcement
should respond when they encounter people on the list. The
Inspector General report found that nearly 32,000 armed and
dangerous individuals are designated for the lowest handling
code. That code does not require law enforcement to notify any
other law enforcement or agency or the TSC. Some of there are
described as having engaged in terrorism or likely to engage in
terrorism. They enter the U.S. and are a hijacker or a hostage
taker of use explosives or firearms.
I understand there may be some legal requirements and there
are strategic requirements, but I cannot understand why they
are in such a low handling, why they are put so low. Does this
put an officer who might pick them up at undue risk?
I think in my own State--and this would be the same for
most rural areas--if a State trooper stops somebody at 11
o'clock at night, his back-up may be an hour or 2 hours or more
away. And the person may be in one of these dangerous
categories, but they are at the lowest category.
Am I missing something here?
Director Mueller. I would have to get back to you on that,
Senator. I know if the person is on the watchlist, the reason
why the person is on the watchlist, there has been reason to
believe that there is information or reason or evidence or
intelligence to believe that the person needs to be on the
watchlist. And then there are various categories, as you point
out, for the handling and treatment.
The fact that the person is on the watchlist means that
when that person is stopped, the Terrorism Screening Center
will be alerted. And the usual practice is that when the call
comes in, the Terrorism Screening Center then goes, looks at
the file and talks to the agency--
Senator Leahy. But this says they don't have to be.
Director Mueller. Pardon?
Senator Leahy. Those that fall in this number four
category, they say the Terrorism Screening Center does not have
to be notified, and yet some of them are said to be people who
handle explosives--
Director Mueller. I will have to get back to you on that,
Senator.
Senator Leahy. Well, do me a favor. If you get back to me
on it, would you review the answer yourself?
Director Mueller. Yes.
Senator Leahy. I understand from your testimony in another
case that you usually do not review these answers. This one I
am very concerned about. Whether they are in rural Pennsylvania
or rural Texas or Alabama or Vermont, we have very brave police
officers who are out there in the middle of the night with no
back-up, and when they see a name come up, they should know
whether this is somebody they ought to be a little bit more
nervous about.
Director Mueller. Let me check one thing, if I could.
Yes, I will review that answer.
Senator Leahy. Thank you. And I am disturbed by some
reports from the GAO that an audit of the project, the Virtual
Case File project, has been substantially delayed by the FBI. I
understand that weeks go by before some meetings are scheduled.
Sometimes the GAO has had to wait several months, as long as 9
months in once case, to receive documents, or the Bureau has
provided wrong documents or posed other delays requiring the
DOJ and the FBI attorneys to screen their documents. I know I
have been told many times the FBI's answers to questions I have
asked have been tied up in DOJ reviews.
DOJ has raised these problems with the Bureau. They have
received assurances that things will go better. Are things
going to go better?
Director Mueller. Well, I had heard this from--it came to
me from your staff several months ago, and I immediately asked
persons to look into it. They met thereafter with GAO. And I
believe whatever issues that were outstanding have been
resolved.
Now, if you will allow me one second?
That is what I understand. Yes, I believe that is taken
care of.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman, and thanks,
Director Mueller, for being here. You have earned all of our
respect, and we appreciate your great service.
Let me just ask you about two subjects, one that I think
you will regard as a fairly straightforward question. The other
is not designed to be hostile but, rather, constructive and
that has to do with technology that you already touched on.
I have, frankly, never understood the opposition to the use
of the administrative subpoena in fighting the war on terror,
as benign an instrument of law enforcement as it is to gain
business records. It is already used in 335 different types of
applications. Why we would deny that same tool to our law
enforcement efforts when it comes to fighting the war on
terror. Do you understand what the concerns are? I realize a
lot of what we do here is not necessarily rational. This just
seems to be totally irrational, denying that tool to the FBI,
to other law enforcement in fighting the war on terror.
Director Mueller. As I discussed in other fora as well as
here, I believe it is a tool that would be exceptionally
helpful, and to the extent that we have it in 300-plus other
areas, it does seem that it would be appropriate to have it in
this--for use in national security investigations and terrorist
investigations, and I am hopeful that this Congress will see to
support it.
Senator Cornyn. Of course, the Intel Committee, in voting
out its version of the PATRIOT Act, has included the
administrative subpoena in its version. We did not in this
Committee, but it is my hope that it can be restored on the
floor and that tool can be made available.
Let me talk to you about information technology, and you
have been kind enough to come by my office and talk to me about
my concerns in this area. And I guess I do not want to go over
old territory with regard to the Virtual Case File, but I am
concerned because in 2006 it is estimated that the Federal
Government will spend $65 billion on information technology.
And I just want to make sure that we do not waste the
taxpayers' money.
I know every taxpayer in the country would willingly send
their dollars to Washington to help the FBI and other Federal
agencies perform the important work that you are doing to keep
us safe. But they want to make sure the money is spent wisely
and efficiently.
And so would you just, in the few minutes we have remaining
here, describe the steps that you have undertaken that you
believe were going to result in successes in the FBI? I know
the creation of the CIO has been one step, but would you
describe that for us so we can have greater confidence that the
FBI and other Federal Government agencies are going to be
spending that money wisely?
Director Mueller. Well, one of the things we have done is
have a very competent CIO we have brought on board. We have
expanded his shop. Perhaps as important, we have given the
CIO's office the control over both the funds and the new
projects. We have developed an enterprise architecture for the
Bureau so that each new component of high-tech or information
technology fits into the enterprise architecture for the
Bureau.
As we have developed the Sentinel project, we have elicited
support from any number of outside groups and specialists and
experts. We have brought several on board ourselves to expand
the CIO's office.
I can tell you as we go down this path that we will be
looking for outside scrutiny and suggestions in terms of how to
do it. I have a Director of Science and Technology Board that I
look to with a number of people who have expertise in this
arena. We have had independent assessments by outside entities
such as the RAND Corporation. We deal with the Markle
Foundation that focuses on these issues. We have a Strategics
Guidance Council within the FBI. I have special advisers who
have accomplished this type of transformation in business in
the past who I call upon and get an outside view from
periodically.
We want to work with the Inspector General's office as we
go along so that the Inspector General can point out to us any
areas in which there are flaws. We will continuously brief
Congress at will. I would like nothing more than to have the
process of developing this IT transparent and will take any
suggestions from anybody on how to make it better.
Senator Cornyn. It sounds like you are throwing everything
you can at the problem, and I congratulate you for taking it so
seriously. As you working closely with the Office of Management
and Budget in their efforts across--
Director Mueller. Absolutely.
Senator Cornyn.--Government agencies to try to develop
strategies to avoid these failures and to increase the
likelihood of success in the future?
Director Mueller. Absolutely, and there are some areas--and
I think that the Office of Management and Budget will look at
the work that has been done by our CIO shop in certain areas
and say that we are leading in areas. And we in the future want
to lead when it comes to information technology, as we have led
in other areas. And I believe that we are building that
capability.
I will tell you that I meet every week with our CIO. Myself
and the Deputy sit down and go through where we are on
Sentinel, where we are on the other projects. It is as
important a priority as we have in order to assure that we
protect the United States, particularly against terrorist
attacks.
Chairman Specter. Thank you, Senator Cornyn.
Senator Feinstein?
Senator Feinstein. Mr. Chairman, thank you.
I wanted to continue the discussion on administrative
subpoenas, if I might. We discussed this privately. To the best
of my knowledge, this is the first time publicly that you have
asked for an administrative subpoena for intelligence purposes.
You have for law enforcement purposes, but this is the first
time, to the best of my knowledge, for intelligence purposes.
I voted against the intelligence bill in Committee because
of the broad administrative subpoena language, and since
Senator Coburn raised it, I would like to respond to it.
The administrative subpoena language in the intelligence
bill is extraordinarily broad. There is no requirement for a
certification of an emergency. There is no requirement for a
sign-off by the DOJ, just a sign-off by the SAC. And the non-
disclosure is limited.
Now, the reason that an administrative subpoena is
different from the 350 other subpoenas in health and other
areas is because it is not discoverable and the target
essentially never knows that the Government is gathering
information against them. And this can go on for years under
the language in the intelligence bill. So that was one of two
reasons why I voted against that bill.
I did, however, move an amendment, which I would be
prepared to support, and the first part of that amendment was a
certification of emergency--in other words, the rationale for
needing the subpoena, the fact that it would relate to some
criteria with respect to cause, that it had a sign-off by the
DOJ--this could be by an AUSA--and coming to some agreement on
non-disclosure.
Now, you asked for an administrative subpoena for certain
specific documents that you are looking for. Let's say you go
into a hotel and you say I need all of the records of everybody
that is registered in this hotel. Now, in my view, you have to
have cause, a rationale to do it, and that would be the
certification. And the sign-off that the documents you are
looking for really are relevant would be by an AUSA, similar to
what a judge might do when called on a weekend with respect to
a search warrant.
Would you agree to these provisions being added to an
administrative subpoena provision?
Director Mueller. I would oppose it.
Senator Feinstein. You would oppose it. You would not want
any criteria at all?
Director Mueller. I do not. Let me explain my thoughts on
this, understanding your concerns.
You raised a concern that persons whose records have been
subpoenaed would not find out. Well, that may well be true also
in a health care or a child pornography case.
Senator Feinstein. My understanding is it is all
discoverable in a court of law.
Director Mueller. If there is a case. There may well not be
a case. So there may be a case on either side. But I think I am
not certain that I would give a lot of weight to that
particular argument.
The other argument with regard to certification of
emergency--
Senator Feinstein. Before you do that, let me just discuss
that with you. Therefore, the Government could, under foreign
intelligence, begin to collect data on people which conceivably
could last for a very long time.
Director Mueller. Relevant to a particular investigation,
absolutely, in the same way we collect data now as a national
security letter, absolutely. But--
Senator Feinstein. But there is no criteria to show that--
Director Mueller. Relevant to an investigation--
Senator Feinstein.--it relates to an investigation.
Director Mueller. Relevant to an investigation. And I will
tell you, we had an example a couple of weeks ago in the wake
of the bombings in the U.K. We had an example of a case in
which an individual who was associated with the room that was
believed to be the room in which the bombs were constructed, it
was no longer in that area, but whenever we find out--I guess
it was up in Leeds, in the wake of the July 7th bombings in the
U.K. And we had an occasion in which we believe this individual
had been in the United States, had gone to college in a State
in the United States. The person had expertise in chemistry
that would enable that person to construct these bombs. We went
to the university with a national security letter. They
declined to produce the documents pursuant to a national
security letter. We had to, because there is a case that was
aligned to it, we had to go back with a grand jury subpoena.
Now, in my mind, we should not in that circumstance have to
show somebody that this was an emergency. We should have been
able to have a document, an administrative subpoena that we
took to the university and got those records immediately.
The other point I would make, if I could--
Senator Feinstein. Let me stop you. If you will, just allow
me, because I think this is really important for many of us,
Mr. Chairman. Why would you--
Chairman Specter. Senator Feinstein, take a few more
minutes here. You have been at the core of this problem in both
Intelligence and on this Committee.
Senator Feinstein. Thank you very much.
Why would you object to a DOJ sign-off, A, on emergency
and, B, on the relationship to an investigation? I do not
understand that.
Director Mueller. Because I believe that the special agent
in charge should be--
Senator Feinstein. It is not going to slow anything down.
Director Mueller. There should be a level of review, and my
belief is the review should be the special agent in charge. In
this particular case, it resulted in a 2-day delay.
And the other point that I would make with administrative
subpoenas that is different with an NSL, and that is that the
recipient of the subpoena has the right to go into court and
challenge it. And so there is a process there that allows the
recipient of the subpoena to go into court and challenge it
before a Federal judge, and that in my mind is sufficient and
adequate to assure that you will have sufficient review of that
process.
Senator Feinstein. Of course, with the administrative
subpoena, that is not true. They do not know about it. The
target does not know about it.
Director Mueller. The third party does not, but the
recipient--
Senator Feinstein. But the hotel might object, using that
analogy, but the target never knows.
Director Mueller. True.
Senator Feinstein. So you could do school records, you
could do business records, you could do anything on anybody,
and that is my concern. All I am asking for is certification of
emergency, sign-off, just as you would get a judge, a police
officer would pick up the phone and say, look, this has
happened, I need this warrant. A judge at night would sign off
on it.
See, the resistance to this makes me suspicious.
Director Mueller. I would try to alleviate your suspicion.
I will tell you, day in and day out, we get threat
information, the Internet, letters, walk-ins, about a
particular person at a particular place who is going to
undertake a terrorist attack. In this day and age, in order to
respond to every threat, we have to go out there, we have to
get records of who is in a particular hotel room, who is
utilizing a particular telephone, and the need for speed is
such that it makes sense to us to have the ability of the SAC
to sign off in this administrative subpoena and give us the
flexibility and the speed in order to get those records we need
to assure ourselves that the information we may have received
from the Internet or from a walk-in is erroneous and that we
have done everything we can to assure that there is no further
terrorist attack.
Senator Feinstein. All we would be requiring would be the
phone call. But it would be some oversight over the FBI within
the DOJ. You do not want that. You do not want even a phone
call?
Director Mueller. I believe oversight is appropriate with
assuring that the upper levels of the FBI are required to sign
off on the administrative subpoena. I believe that is
sufficient.
Senator Feinstein. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feinstein. Have you
convinced the Director?
Senator Feinstein. I beg your pardon?
Chairman Specter. Have you convinced the Director?
Senator Feinstein. No, but then he has not convinced me
either.
[Laughter.]
Chairman Specter. Senator Sessions.
Senator Sessions. Senator Feinstein is such a good law
enforcement supporter, I think she will be convinced before
long. I am just convinced of it. This is an area that it
baffles me. I agree with Senator Cornyn completely.
Director Mueller, if the Drug Enforcement Administration is
investigating a drug dealer, and they are believed to have
checked in at a motel, can that Drug Enforcement officer get an
administrative subpoena and get the records of the motel
without declaring an emergency and without having the approval
of the Department of Justice?
Director Mueller. I believe so. I have to look at the
specific statute, but I believe so.
Senator Sessions. I believe so too. Can the IRS get
people's records?
Director Mueller. I believe that would be the case.
Senator Sessions. They do not have to declare an emergency
to get that.
Director Mueller. No.
Senator Sessions. But if an FBI agent is investigating a
terrorist who may be staying at a motel and would like to
verify that through motel records, they cannot get it without
going to the FISA Court and getting an order that may take who
knows how much time before it ever comes back to them; is that
not right?
Director Mueller. That is one of the avenues. We do have
the NSL avenue, but that is one of the avenues.
Senator Sessions. I just think this is unbelievable that we
would provide all kinds of health care document that can be
produced by the health care inspectors and other people that
collect these documents and we cannot do it for our National
security. Of course people collect the documents and the FBI
maintains a file on it, but it does mean that they are going to
produce that to the world or prosecute somebody who is
innocent. I just really am concerned about that. I think this
is a good thing.
Would you think that if a FBI special agent in charge,
which is a fairly august position at least in the eyes of those
who work for that agent in charge, maybe send a copy of it to
the U.S. Attorney or something if that would make people feel
better, but to me we ought to have at least the powers that we
have in other agencies of Government to investigate terrorism.
Would you comment on that in general?
Director Mueller. I would agree. I do believe if you have
it in 300 plus other circumstances, including child
pornography, IRS, and certain areas of the DEA, it would be not
only appropriate but an important device for us to have as we
address not just terrorism investigations, but
counterintelligence investigation and investigation in which
other countries, other people are seeking to steal our secrets
and provide it either to groups outside the United States or
other countries outside the United States.
Senator Sessions. I would just share this thought.
Historically, public documents outside the control of an
individual--you have been a long time prosecutor. You have
handled these things for many years. You are a professionals
professional. You serve Republican and Democratic
administrations. You have been United States Attorney in a high
position in the Department of Justice. You have personally
prosecuted lots and lots of cases. You understand what it is
like in a courtroom.
So my question is essentially, has it not always been the
legal principle that with regard to documents outside your
control, not the records you have in your house or in your desk
at your office, but where you sign a motel receipt or a phone
receipt, you do not have the same expectation of privacy in
that document as you do something that is within your own
personal sphere of control; is that correct?
Director Mueller. That is accurate and the Supreme Court
has so held. In fact, it was Sandra Day O'Connor in a case--I
cannot remember the name off my head--that held that.
Senator Sessions. So whenever you sign in at a motel, the
clerk knows your name and what you filled out. Anybody that
works at that motel you have an expectation has access to that
document or else they would not have asked you to fill it out.
It does not have the same degree of secrecy that you would if
it were in a document maintained in your home.
Director Mueller. Correct.
Senator Sessions. So that is why we have always done that,
used to in the past, motel records, even telephone records were
turned over by these entities whenever you asked for them.
Director Mueller. Grand jury subpoena generally, standard
is relevance.
Senator Sessions. But in the old days, when Dragnet and
Jack Webb and all were investigating crimes, they would just go
down to the motel and the guy would give it to them, right?
Normally.
Director Mueller. Normally, yes, way back when.
Senator Sessions. Then they started being afraid they would
be sued or something, so they will not give any records. They
want a subpoena, and an administrative subpoena will allow for
that and maintain a record of it. If they do not want to turn
it over, they can file a motion to quash.
Just one more thing if you would. I think the Nation has
been watching the case involving Natalie Holloway in Aruba.
Director Mueller. Yes, sir.
Senator Sessions. She is a resident of my State. We have
been concerned about that. I understand that the Aruban
authorities in recent days have been more open with the FBI. I
think you have personally made some effort on it. What can you
tell us about the status of that?
Director Mueller. Originally I did talk to the Attorney
General down there, and we had a number of agents that were
helping out, assisting in the initial stages of the
investigation. We currently are offering expertise to the
Aruban authorities to the extent that we can provide it, and in
the last couple of days I believe we have been in discussions
where we are offering and providing expertise to the Aruban
authorities in hopes of having a break in that case.
Senator Sessions. I certainly hope so. I have been told by
the Prime Minister that he welcomes any assistance, so if there
is not full cooperation, I hope you would let me know so we
could approach that with him.
Director Mueller. Yes, sir.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
We now have Chairman's call. Senator Feingold was here
earlier but left, and Senator Durbin has been here longer. But
we passed you by, Senator Feingold, so the tie goes to you. You
are next in line.
Senator Feingold. Thank you, Mr. Chairman.
Thank you, Director, for not only being here today but for
the time you spent with me in my office recently which was very
helpful.
I am pleased that there was a good exchange before I got
here with Senator Feinstein about these administrative
subpoenas. We talked about it at some length, and I do hope
that you will continue to consider alternative ways that we can
get at these problems which you explained very well to me in my
office, but I really hope we do not have to have such broad
powers used in order to get at these emergency situations.
I would like to talk to you about the bill that the Senate
Judiciary Committee unanimously reported out of Committee last
week reauthorizing the USA PATRIOT Act and making some changes
to some of its most controversial provisions. As I stated last
week, the compromise bill made some meaningful improvements but
did not address everything that I believe needs to be revised.
One provision that I would have liked to have seen in the bill
is an ascertainment requirement for roving taps under the
Foreign Intelligence Surveillance Act, just as there is now an
ascertainment requirement in the criminal law for roving taps.
It is a simple concept. It ensures, when the order itself does
not designate the phone or the computer to be tapped, that the
investigator actually has a sufficient basis for turning on a
wiretap of a particular phone or a computer. It just ensures
that innocent people's phone and computer conversations are not
intercepted.
Would you have an objection to including an ascertainment
requirement for FISA roving taps?
Director Mueller. I would have to look at that, Senator. I
will tell you one of the things that is a challenge is this day
and age is the swiftness with which some discard communications
devices and replace them. I would certainly look at and
consider any language that you would propose, but I expect to
balance it against our need to move efficiently from
communications device to communications device without always
having to go back to the FISA Court on a daily or hourly basis.
So I would have to look at it.
Senator Feingold. I understand the need for that kind of
balancing. I guess I would just like you to speculate on how
this works, how an agent makes the decision of which phone or
computer to tap. If you do not somehow ascertain that the
target is using the phone or the computer, how do you decide
which phone or computer to tap?
Director Mueller. First of all there has to be the belief
that the person is a agent of a foreign power or a terrorist so
there has to be some initial threshold finding before you get
to the device that is being used, and then the application
would have some description of the device or types of devices
or where they are being used or how they are being used in
order for the court to be able to articulate an appropriate
order to the facility that was providing the service. So
inherent in that process is some degree of specification.
Senator Feingold. This is the whole point of ascertainment.
You do have a target out there. You have somebody you are
concerned about. But how do you connect that person to the
particular phone or computer without an ascertainment
requirement?
Director Mueller. It depends on the circumstances. I would
have to look at your--
Senator Feingold. You have indicated a willingness to look
at it. I think this is a gap that we need to change something
about this in order to protect innocent people, and I hope we
can work together on that.
I would like to get your response to some testimony we
heard at a PATRIOT Act hearing a few months ago. One of the
witnesses at that hearing was Suzanne Spaulding, who has spent
a good portion of her career working on intelligence issues at
the CIA on two different commissions examining issues relating
to terrorism and weapons of mass destruction, and in Congress
where she had the privilege or working for our Chairman and on
the Intelligence Committees.
She explained why we have to be particularly careful in the
oversight of intelligence investigation, and I want to read
what she said. She said: ``Intelligence operations by necessity
are often wide ranging rather than specifically focused,
creating a greater likelihood that they will include
information about ordinary law-abiding citizens. They are
conducted in secret, which means abuses and mistakes may never
be uncovered, and they lack safeguards against abuse that are
present in the criminal context, where inappropriate behavior
by the Government could jeopardize a prosecution.''
She continued: ``Because the safeguards against
overreaching or abuse are weaker in intelligence operations
than they are in criminal investigations, powers granted for
intelligence investigation should be no broader or more
inclusive than is absolutely necessary to meet the national
security imperative and should be accomplished by rigorous
oversight by Congress, and where appropriate, by the courts.''
Do you agree with the statement and sentiments that I just
read?
Director Mueller. She said an awful lot in that statement.
There are certain aspects that I would agree with. I do believe
that one has to be careful in establishing, for instance, an
intelligence directorate or a national security service, that
one has an objective for the collection of intelligence. I do
believe that one of the reasons both the 9/11 Commission as
well as the WMD Commission believe that the growth of a
domestic intelligence capability in the United States should be
in the FBI is because we have a lengthy detailed training with
regard to the controls on our activity, whether it come from
the Constitution, whether it come from statutes, whether it
come from the AG guidelines.
I do believe that one of the reasons that it is important
for the FBI to undertake this capability is that I think we
have a way of looking at sets of circumstances that is fact
driven and is consistent with the Constitution, its applicable
statutes and the AG guidelines.
By the same token, I do believe that in order to address
the threats of today and tomorrow in terrorism, weapons of mass
destruction, there has to be a growth and some capabilities
along the lines of administrative subpoenas to allow us to have
access to the information that will alert us to the threats
against the United States, with appropriate Congressional
oversight.
One of the things that I do believe is important for us and
others is to see what you have done but not put impediments to
action. In other words, in my mind, adding a test or issuing
administrative subpoenas are impediments to swift action, where
you can look after the fact and see if it was appropriate. And
in my mind, as you build an intelligence capability, as you
look at oversight, there needs to be oversight in the
institution, in the Department of Justice, but the oversight
should not inhibit the swift reaction to a set of circumstances
that you just do not know where it is going to go and you have
to act quickly.
Senator Feingold. Thank you, Mr. Director.
Chairman Specter. Thank you, Senator Feingold.
Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
Thank you, Director Mueller, for being here. I continue to
have the greatest faith in you. I think you were an excellent
choice by this administration. You have served our Nation well,
and I would say the same for all the men and women who work at
your Agency. We are fortunate as Americans to have people with
your dedication to the common good and the protection of
America. Thank you for your service.
You have been very open with me. There have been times when
we have had discussions where you were candid about your
misfortunes and disappointments, and things that we had hoped
would turn out better. So please take whatever I ask in that
context. I respect you very much for your public service.
Let me go if I can to the underlying--I have two questions,
and I will state them both though they are unrelated, because I
will run out of time otherwise.
The first is this. We have had several colleagues talk
about the PATRIOT Act. I voted for the PATRIOT Act. It was a
strong bipartisan vote for passage of it, and I commend the
Chairman and other members of the Committee. Our proposed
revisions of the PATRIOT Act passed 18 to nothing on a strong
bipartisan roll call, and that is exactly the way it should be.
I think we found the right balance between security and liberty
in what we have come up with to revise the PATRIOT Act.
If you will listen to the questions of my colleagues and
mine, you will understand there is still an underlying concern
that maybe we have gone too far in some specific areas of the
PATRIOT Act, gone too far in compromising our basic rights and
liberties as individual citizens.
The reason I raised that--we are not going to resolve that
today, not likely we will at any time in the near future. But
the basis for the PATRIOT Act is to give the Government the
authority it needs to collect enough information, intelligence,
to protect us from terrorism, and crime for that matter, but
protect us from terrorism.
What troubles me is as we debate about how wide we are
going to open the top of this funnel to collect information,
once collected, that information passes through a very narrow
chute when it comes to the analysis of the information, the
collection, the analysis of that information and the sharing of
that information, and it is at its narrowest point in your
Agency at this moment. I think it is reflected in the fact
first of the information technology problems which beset this
Agency for a decade or more. According to Judge Webster, you
are facing an obsolete system today at the FBI. It is clear
from all analysis that it will take as long as 3\1/2\ years
from now to complete the Sentinel system which is the
modernization of your information technology, which means from
start to finish, 9/11 to completion of the system, 8 years, 8
years.
Secondly, the Inspector General talks about the backlog of
collected counterintelligence and counterterrorism audio, that
we still have more than one-fourth of that that goes
unevaluated, unreviewed. Even as we collect more and more
information we still do not have the people to review it to
determine what is important there to keep us safe. 10 years to
coordinate our fingerprint collection from start to finish when
the Federal Government said to the then Immigration
Naturalization Service and the FBI, can you collect the same
sets of fingerprints so you can share this information? Maybe
at the end of 10 years they will have been able to accomplish
that simple task. Then of course the information that will come
out in this hearing, that about one out of five of your
intelligence analysts plan to leave within the next 5 years.
So when you put all this together, my basic question to you
is one that my former Congressional colleague and Commissioner
of 9/11, Mr. Hamilton, is going to raise later on. If it is
going to take us another 3\1/2\ years to get all this together,
can we afford to wait? Can we say that that is an acceptable
timeline? Is there anything you can do or we can do to speed
this up and to make certain that intelligence gathering
analysis and collection is done in a more timely fashion?
The second question, totally unrelated, goes to the
administration's interrogation techniques. These have been
extremely controversial. The idea that we would change our
approach in interrogating prisoners and detainees in the war on
terrorism has been the subject of a lot of debate, dissension
from people like Secretary of State Colin Powell, JAG lawyers,
an amendment pending on the floor yesterday from Senator
McCain, Senator Graham and Senator Warner about whether or not
we ought to be more explicit in saying the United States will
not engage in cruel, inhuman and degrading treatment of
prisoners.
Your FBI agents have been some of the most outspoken
critics of this administration's interrogation techniques,
saying in memos that we have received that have been
declassified, that first, torture is ineffective. A person in
pain will say anything to escape the pain. Secondly, that the
techniques that are being employed go too far. Some of your FBI
officials have said they are not permitted by the U.S.
Constitution. Others have said that they are harsh techniques
that do not produce good intelligence.
My question to you is this. I want to commend the FBI for
standing up for American values. I think you are recognized as
the Agency that probably has been the premiere agency in
effective interrogation techniques. What has been your reaction
to the interrogation techniques of this administration, the
critique of your agents, and to your knowledge, have the
Defense Department's interrogation changed because of FBI
oversight and observations of excesses?
Director Mueller. Let me start on the delay that it is
going to take in various areas to get where we want to be. I do
not see an endpoint. Information technology has to grow month
by month, year by year. Sentinel now is going to be in four
stages. We have 100 different programs, different systems, many
of which are obsolete. You have to do a triage on those systems
to put into place new systems that will give you the same
information but in different ways. One of the things that
people do not recognize, that it was a huge advance for us to
have everybody with the most modern computers, to have the
networks in place, the modern networks, and to have the
database structures in place that will enable us to share that
information.
So I see Sentinel as one piece of a process where it is
going to be in four stages. We get returns 12 months from
December, hopefully. I will say ``hopefully'' given my
experiences. And then several months or a year afterwards the
next iteration of it. We tend to look at this as one project,
look at it as a whole, but there are other things that will be
happening at the same time, and it is an iterative process.
What we have done in my mind is put into place the capability
to manage this process as a large corporation, modern
corporation would. When it comes to human resources, what we
need to do is put into place the same capabilities that a large
corporation would have in order to bring people on board to
recruit them, to hire them, to train them and to retain them.
We are putting in place the, redoing the infrastructure to put
in place a modern human capital capability that will enable us
to do this down the road.
I see putting into place these building blocks that will
enable us in these other areas, besides just investigation,
besides just intelligence gathering, but enable us to conduct
these two activities much more effectively and efficiently than
we have done in the past. But it is a continuous iterative
process. So we will have returns far before 2009 or 2011 or
2015, but you get to 2009, the process and the capability still
has to be there to build.
With regard to the question in terms of the interrogation
techniques, I have not been--
Senator Durbin. If I could ask you one last follow-up on
the--
Chairman Specter. Senator Durbin, you are three-quarter
minutes over. How much more time will you need?
Senator Durbin. I was living by the Feinstein rule, but the
Durbin rule is a much shorter one, so whatever you can say I
would appreciate.
Chairman Specter. You are past the Feinstein rule, Senator
Durbin, but my question pending is how much more time do you
need?
Senator Durbin. Just if he could answer the last question.
Chairman Specter. Okay, fine. Go ahead, Director Mueller.
Director Mueller. Our agents have followed the protocols
that have established in the Bureau over a period of time. To
the extent that we have had information brought to our
attention, where we believe that matters should be taken up by
other authorities, we have provided that information to the
Department of Defense the follow up on.
Senator Durbin. I am sorry. I did not understand your
response.
Director Mueller. Where we have information relating to
standards of interrogation that we did not believe may be
appropriate, we have taken those pieces of information and
provided them to the DOD to review and to address.
Senator Durbin. If I had time, I would ask you whether they
had changed their interrogation techniques as a result.
Chairman Specter. Senator Durbin, do you have another
question? Go ahead.
Senator Durbin. That is my last question.
Director Mueller. I do believe they have, but I am not
privy myself to the changes and the developments in that
regard, but I believe they have.
Chairman Specter. Senator Durbin, you did not have another
question. Director Mueller just had another answer.
Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman.
Director Mueller, there was a story in the New York Times
the other day about how fearful Londoners are to ride the
subway. My question is, why should citizens here in our country
feel any safer in the subways of America? What can you tell the
American people about our law enforcement officers today and
the system that we have going that would get them to feel that
law enforcement here is better than it was in London, and that
they should not be as fearful as Londoners are today?
Director Mueller. Allow me to say I happened to be on a
pre-scheduled trip in London last week, and I can tell you the
Londoners go about their business the next day. They have been
through this before. The fact that there was a second wave
certainly would cause some concern, I will tell you that the
Londoners are back in those subways. The ridership was not down
much at all, and if it was down, it was down a day and then was
back up a day afterwards.
We have, I believe, in the United States, together with
Department of Homeland Security, the State and local law
enforcement authorities, through our joint terrorism task
forces, through our relationships, through understanding the
threats to our communities including our subways, have worked
together to do what we can to protect the subways, to do what
we can to protect the trains, and there probably is more that
can be done. The fact of the matter is, you can never protect
it 100 percent. You can never protect it 100 percent. And so
you want to minimize, reduce those risks. We are doing
everything we can to minimize, reduce those risks.
Throughout the United States we are sitting side by side
with State and local law enforcement, understanding what is in
the community, the threats in the community, and when we see a
threat in the community, we have moved quickly I believe to
address those threats either by prosecuting the individuals on
material support where it is appropriate, prosecuting the
individuals for other criminal offenses where it is
appropriate, or in other case where the person is here
illegally, deporting the person where it is appropriate.
Senator Kohl. You feel that people in our country have
legitimate reasons to feel safer because of the measures that
we take, that you take with your Department, and Homeland
Security takes, then perhaps people in London?
Director Mueller. I think that it is just not Homeland
Security, it is not just the FBI, it is other Federal agencies,
it is State and local law enforcement, and it is our
intelligence community operatives overseas that have had as
much or an effect in terms of disabling al Qaeda as any entity
in the United States, as I pointed out before. Detaining and
removing from the battlefield the leaders of al Qaeda were done
by our sister agencies, and they have done a fantastic job and
that has made us safer. I always say it has made us safer, not
safe.
Senator Kohl. Speaking about al Qaeda, how would you assess
the level of threat that al Qaeda poses today? Is it closer to
what the administration officials have repeatedly been telling
the American public, or closer to the assessment of other
terrorism and intelligence experts who believe that they are
still today coordinating attacks as the London attack?
Director Mueller. I think most people would agree that
there are a number of instances in the past where individuals
who have an ideological compatibility with the violent
extremism articulated by bin Laden have come together to
undertake attacks. The extent of the direction from afar is
different depending on the attacks. It may be financial
support. It may be information and capabilities in
manufacturing devices. But you have to look at each incident to
determine to what extent there was support from outside the
place in which the incident occurred, and to what extent that
can be tied to a particular person who is known to be in the
inner circle of al Qaeda, and that is difficult to do.
I will say, as I was saying before, I think we are a lot
safer, certainly a lot safer than we were before September
11th, but the fact of the matter is, while we are a lot safer,
you cannot 100 percent guarantee there will not be another
terrorist attack.
Senator Kohl. What makes it so terribly difficult for us to
capture Osama bin Laden?
Director Mueller. I would hesitate to speculate that. That
probably should be directed to others in the intelligence
community, because I am somewhat familiar with the terrain and
the difficulty in operating in the terrain where he is believed
to be. I am somewhat familiar with the difficulties in
identifying with specificity where he is, but I am certainly no
expert in that.
Senator Kohl. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Kohl.
Senator Biden.
Senator Biden. Thank you very much, Mr. Chairman. I
apologize, I had to be in Delaware this morning at the State
Fair to speak to the agricultural community, and I apologize
for being late, Director.
Let me begin by thanking you. I think you are doing a heck
of a job, and I think you are doing a heck of a job under very,
very difficult circumstance, and all of us so-called
policymakers and administrations and Congress, we all like
finding somebody else to blame for some of our problems, and
your Agency has been I think the target of some criticism I do
not think it has deserved.
I would like to make one broad statement and then ask you
to respond to a few specifics. It is sort of like we have had a
perfect storm occurring here. We had a decision made based
upon--and I am not asking you to comment--but a decision, right
or wrong, to end the COPS program, drastically cut the aid to
local law enforcement for no hiring and for a lot of other
things. We were providing over $2.4 billion in local law
enforcement aid. Now we are down to $167 million. The aid that
goes through Homeland Security, none of that is allowed to be
used for hiring personnel, and it is less than targeted.
You have had enormous additional responsibility placed upon
you in the counterterrorism area, enormous. You have
justifiably and understandably had to tell local law
enforcement, overstating it to make a point, we do not do bank
robberies or interstate car theft any more; you guys are on
your own. Violent crime task forces have had to be curtailed.
It is not a criticism, it is an observation. I do not know how
you could do it with the number of agents you have. My
recollection--and I am sure they are in my notes here--I do not
recall them exactly, but the total increase in the number of
agents is de minimis since 9/11, and at the same time we are
getting reports--and I am going to ask you to comment on this--
from the Counterterrorism Center, John Brennan, and many others
because all of us have been dealing with this in other
capacities beyond this issue, that a greater threat is
homegrown terrorism, not importation. I do not know if that is
true. I am going to ask you whether you agree with that.
The end result of all of this is, it seems to me--and I
know you are in a tough spot; I do not know what your answer
would be. I hope it would be candid or you would just demur,
but not tell me something that is not--and that is, I think you
need 1,000 more agents. I am not being facetious. I think you
need 1,000 more agents. I think we have to reconstitute the
Violent Crime Task Force. I think you have to be able to walk
and chew gum at the same time. I think we cannot--not the you
are leaving it hanging, but you are not able to assist locals
like you were before.
With all your intelligence work, and pray God--I see the
Co-Chairman of the 9/11 Commission is here--pray God these
fixes will be successful. But it is more likely to be some
local cop coming from the Dunkin Donuts Shop, going behind a
super mall in my State or yours, that detects a guy climbing
out of a dumpster, who has just put Sarin gas in the
ventilation system. It is not going to be a guy with night
vision goggles, and you are not going to be able to all the
time have the intelligence to anticipate where this is going to
occur.
And I add one last factor. I think it is close to
politically--if there is such a phrase--criminal for us to not
have provided additional security for rail. We are nowhere near
safer, notwithstanding what the great Director says. All I ask
you to do is leave here, go get in the train that the Chairman
and I get on as it takes out Union Station, go to the back
window, look out the window. Tell me how many cops you see.
Tell me whether you see any protection of the switching
devices. Tell me if you see a single camera. Tell me whether
you see anything, anything, anything. More people visit that
facility than any other facility in Washington.
This morning there were more people sitting in an aluminum
tube underneath the tunnels of New York City than in 7 full
747s, virtually no ventilation I say to the Chairman of the
Commission, no lighting, no escape of any consequence, tunnels
built in 1917. Go through the Baltimore tunnel built in 1869,
no ventilation, no lighting, no escape under the harbor. This
is criminal.
Now, it is none of your responsibility, Director, but if
you add all these things up, it seems to me you need more
resources. Are you able to do what you think you need to do
with the roughly--what do you have now, about 14,000?
Director Mueller. We are up to 12,500 I think.
Senator Biden. 12,500.
Director Mueller. Approximately.
Senator Biden. Is that enough?
Director Mueller. Well, we have had to prioritize. We have
been working, for instance, with the Inspector General's Office
to determine where there have been--since we have reprioritized
and made our first priority counterterrorism, making certain
that we follow every counterterrorism lead, there are areas in
which we have not been as active as we have been in the past. I
believe that the studies will show that there has been a
picking up of the slack by the DEA in drug cases, as well as
State and local law enforcement. We still will, in isolated
circumstances, do bank robberies, where they are armed bank
robberies, where we can add something. But where we do not add
something to the table, we have had to prioritize and focus our
efforts, and I think we are doing a fairly good job on it.
There is one area in which I believe we will have to look
at in the future, given what I believe the IG report may come
out with, and that is when it comes to smaller white-collar
criminal cases, with the Enron cases, with the Qwest cases,
with all of those cases we have had to put substantial
resources on the larger white-collar criminal cases, focusing
on those, and the smaller white-collar criminal cases which we
have done in the past, we are not doing so much of, and that is
an area where I think there is a gap that we will have to look
to.
We have in front of Congress the 2006 budget, where we are
receiving additional resources. My expectation is I will ask
for additional resources in 2007. I will tell you that we have
had to reprioritize and we will continue to have to do that,
but that is not all together bad either, because we should use
our unique capabilities where they are necessary, and not
replicate the capabilities of others because we like doing it.
Senator Biden. May I have 30 seconds more, Mr. Chairman, to
make a brief comment?
Chairman Specter. Go ahead, Senator Biden.
Senator Biden. My dad used to say, if everything is equally
important to you, nothing is important to you. You are being
asked to prioritize and you are put in a tough spot. I would
like to throw you in the briar patch. I believe it is
absolutely irresponsible for us not to be increasing
substantially the FBI, substantially the aid for transit in
this country, and substantially local law enforcement. And for
the President to tell me there is a priority on a tax cut, tell
me there is a priority on anything else, I find irresponsible.
If you cannot walk your streets, if you cannot be safe, if you
cannot provide for a better shot at dealing with terror, then
it seems to me none of your other liberties from education to
highways makes any sense.
I thank you, Mr. Chairman.
I am going to try very hard to throw you in the briar
patch.
Chairman Specter. Thank you, Senator Biden.
Director Mueller, just a couple of more questions before
turning to the second panel with respect to your comments on
the PATRIOT Act. We have made a fair number of changes to
accommodate what the FBI have said after the Specter-Feinstein
bill was introduced. We have eliminated the reporting on FISA,
on the pen register because you thought that was troublesome.
We have had sunsets on some of the provisions and not on other
provisions.
As to the roving wiretap, we have inserted a requirement to
have some idea as to who is the subject, so you just do not
have John Doe, and it is consistent with your prior
representations that even when a target's identity is unknown,
you must have significant information about the person before
initiating a roving wiretap.
We have omitted the mail cover, but you did not even ask
for the mail cover, which is an expansion of authority, which
is in the Intelligence Committee. That is correct, is it not,
Director Mueller, that you did not ask for the mail cover?
Director Mueller. Did not. That does not mean, however,
that we would not like to at least have it. We did not request
it, but in reviewing that bill, it is something that would be
beneficial because it would enable us to have more authority
over obtaining the mail cover information that we currently
have, but I did not ask for it, you are right, Mr. Chairman.
Chairman Specter. Director Mueller, we would have to guess
about what you wanted if we were to include things you did not
ask for. And then on the scale of what is really necessary, we
obviously weigh pretty critically what you have not asked for
as not being as important as what you have asked for, pretty
fundamental analysis.
With respect to section 215, we have inserted language on
relevancy which meets the grand jury standards. You had
commented that you do not have to show probable cause to get a
grand jury subpoena, which you are exactly right. The grand
jury has a proceeding which seeks to establish probable cause.
On the requirements of section 215, we have said that there
ought to be a statement of facts showing ``reasonable grounds
to believe that the records or other things sought are relevant
to an authorized investigation.''
The PATRIOT Act currently has a relevancy standard, but
does not have any elaboration as to what that means. We have a
number of prosecutors on the Committee who dealt with probable
cause, and it is a lower standard. It is a standard, as I have
said on RT enterprises. So what we have tried to do is to have
a balance. As you well know, the PATRIOT Act has been
challenged from both the right and the left, a lot of concern
about civil liberties, a lot of concern about terrorism, and
our Committee has tried to strike a balance.
We had a remarkable result in getting all 18 Committee
Members to agree, including the one Senator on a 99-1 vote in
2001, who did not favor it, and I am advised this morning that
the two leaders are what we call shopping unanimous consent
request, because it appears that the bill which the Senate
Committee turned out has met with almost universal approbation.
Let me give you one last chance to register whatever
complaints you have as to what you think ought to be changed
from the bill which passed out of our Committee.
Director Mueller. Let me thank you for all the work that
has been done on the PATRIOT Act. This Committee and Congress
as a whole, I saw some time ago a fairly broad gap, and I think
that has been closed. It is very narrow at this point. There is
one area in which--
Chairman Specter. Very narrow at this point, a very narrow
gap at this point?
Director Mueller. Very narrow at this point, very narrow.
Chairman Specter. Good.
Director Mueller. There is one area under 215 where we
would agree with the relevance standard, but there is an
additional phrase in there--and I would have to get back to you
on this--that ties it to an agent of a foreign power, and the
relevance standard, given our--well, the relevance standard
which we think is appropriate, should not be limited by a
further showing of relating to an agent of a foreign power. I
would have to get you the specific write-up on that
phraseology, but that is the one piece that I think is still
outstanding that we have some concern about. If you allow me
just for a second to check.
There is one other problem that I--
Chairman Specter. The provisions that you may be referring
to, Director Mueller, is the language pertains to a foreign
power or an agent of a foreign power relevant to the activities
of a suspected agent of a foreign power who was subject of such
authorized investigation, or pertaining to an individual in
contact with or known to a suspected agent of a foreign power.
Director Mueller. In our minds it should be relevant to an
investigation as opposed to having to identify a particular
person.
Chairman Specter. If that is the only gap we have, provide
additional information because we will be going to conference
with the House and we want to very, very carefully consider any
request you have.
Director Mueller. Thank you very much. Thank you for that
opportunity. We will do so. I appreciate it.
Chairman Specter. Director Mueller, thank you for two hours
plus. It is a long session, but you saw a lot of interest here
by the Members. We know how busy you are, so when we have you
at the witness table, we like to ask you lots of questions.
There is one more that I told you I was going to ask you,
and that is about the Journalist Privilege Statute. Deputy
Attorney General Comey did not come in when we had that hearing
last Wednesday, and we had given you notice in advance that
this would be an opportunity for the administration to state
whatever objections the administration has to that proposed
legislation. So now is the time.
Director Mueller. If I could, I have not been involved in
discussions there. I know Deputy Attorney General Comey filed a
statement in opposition to the legislation, and I am sure as a
representative of the Department of Justice and the
administration, that statement should stand as the policy, or
the views, I should say, of the Department of Justice on that
legislation.
Senator Leahy. Mr. Chairman, if I could?
Chairman Specter. Senator Leahy.
Senator Leahy. I was far from satisfied with Mr. Comey's
statement. I think part of it looked like it was prepared prior
to some of the changes made and some of the legislation. I am
very disappointed.
This is not directed at you, Director Mueller, and your
answer is the only one you can give I think under the
circumstances, but I was very disappointed that Mr. Comey did
not testify. I think this whole question of a shield law,
however you describe it, is an important one. It is one that
one way or the other the Congress is going to wrestle with. I
would hope that we have Mr. Comey up here to testify, or the
Attorney General, to testify on this because it is not fair to
put you in the position to have to. I think at some point we
are going to have to because there is going to be legislation
that will be coming forward on a shield law, and a lot of us
would like direction more than a out-of-date statement, with
almost like a note saying, oh, by the way, I cannot show up.
That is not at you. I am just saying that we have to have some.
Director Mueller. I am not certain what iterations the
legislation has gone through the committees. I was alerted to
the fact that I would be asked the question, and a statement
would stand as the position of the Department. I will say that
one of the concerns that I will voice here, I think is a very
valid concern, is that one would not want to have a mini-trial
every time you need information from somebody associated with
some form of the media, whether it be television or the
newsprint or what-have-you. So in looking over it briefly and
not having spent any time on it, that is something that jumped
out at me as a concern that we would have or I would have in
terms of conducting investigations.
But I preface this, or I guess add to it the fact that I
have not had an opportunity to review the legislation itself. I
have had an opportunity to look at the statement of Mr. Comey,
and that is something that stuck out at me as something that I
think we would be validly concerned about.
Chairman Specter. Thank you very much, Director Mueller.
Director Mueller. Thank you.
[The prepared statement of Mr. Mueller appears as a
submission for the record.]
Chairman Specter. We will turn now to our second panel.
Inspector General Glenn Fine of the Department of Justice;
former Congressman Lee Hamilton; former FBI/CIA Director
William Webster; and Program Manager, John Russack, of the
Information Sharing Environment, Director of National
Intelligence.
Thank you for joining us gentleman, and thank you very much
for your patience.
Our first witness is Inspector General Glenn Fine, has an
outstanding academic background, magna cum laude from Harvard,
Rhodes scholar, BA and MA degrees from Oxford, law degree from
Harvard. Prior to joining the Department of Justice's Office of
Inspector General, Mr. Fine practices as an attorney
specializing in labor and employment law. In 1995 he joined the
Department of Justice and served in varying positions,
including Special Counsel to the Inspector General, Director of
OIG Special Investigations, and Acting Inspector General.
Thank you for joining us, Mr. Fine, and as you know, we
have 5-minute rounds, and then 5-minute rounds of questioning.
Thank you for being here, and we look forward to your
testimony.
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF
JUSTICE, WASHINGTON, D.C.
Mr. Fine. Mr. Chairman, Senator Leahy, Members of the
Committee, thank you for inviting me to testify regarding the
oversight work of the Office of the Inspector General within
the FBI.
In my written statement I provide a summary of the findings
of several recent OIG reports, such as reviews of FBI
intelligence analysts, FBI information technology, the
Terrorist Screening Center, and intelligence information
related to the September 11th attacks. I also describe several
ongoing OIG reviews in the FBI of interest to the Committee,
such as the FBI's compliance with the Attorney General's
investigative guidelines, the FBI's handling of the Brandon
Mayfield case, and the FBI's observations of alleged
mistreatment of detainees at military detention facilities.
In my testimony this morning I would like to provide
observations on the FBI's transformation and key challenges it
faces, and briefly summarize the findings of an OIG report
released today that examines the FBI's foreign language
translation program.
The FBI is undergoing significant changes since the
September 11th terrorist attacks. Despite shortcomings we have
found in some FBI programs, I believe that Director Mueller is
moving the FBI in the right direction, but there are areas in
the FBI in need of significant improvement. The first is the
urgent need to upgrade the FBI's information technology.
Without adequate information technology, FBI employees will not
be able to perform their jobs as fully and effectively as they
should.
Second, our reviews have found that the FBI is affected by
high turnover and key positions at headquarters and in field
offices. For example, in the past, rapid turnover in IT
positions hurt the FBI's ability to manage its information
technology modernization projects.
A third critical challenge facing the FBI is its need to
effectively and efficiently share intelligence and law
enforcement information, both within the FBI and with its law
enforcement and intelligence partners.
Fourth, the FBI must value to a greater degree FBI staff
with technical skills. While the FBI's culture is changing,
more needs to be done to support the work of intelligence
analysts, scientists, linguists and other staff who are
critical to meeting the FBI's changing mission.
Fifth, the FBI previously exhibited an insular attitude
with an aversion to oversight. In the last several years the
FBI has opened itself to outside scrutiny from the OIG as well
as other groups. While not everyone in the FBI has welcomed
such change, I believe the Director, senior FBI leadership, and
many FBI employees recognize the benefits of this oversight.
I would like to now turn to the OIG report regarding the
FBI's foreign language translation program. In July 2004 the
OIG completed an audit which found that the FBI's collection of
counterterrorism and counterintelligence audio material had
outpaced its translation capabilities. The audit also found
that the FBI had difficulty in filling its need for additional
linguists.
Because of the importance of these issues, the OIG
conducted a follow-up review this year to assess the progress
of the FBI's translation program. Our follow-up review
concluded that the FBI has taken important steps to address
recommendations from our previous report, and has made progress
in improving its translation program. However, we found that
key deficiencies remain, including a continuing backlog of
unreviewed counterterrorism and counterintelligence materials.
For example, the FBI estimated that its counterterrorism audio
backlog was 4,086 hours as of April 2004. In this follow-up
review we found that the counterterrorism audio backlog had
doubled to 8,354 hours. Although that is a small percentage of
total counterterrorism audio collections, the FBI has no
assurance that these materials do not contain important
counterterrorism information unless they are reviewed and
translated.
We also attempted to determine the priority of the
counterterrorism material that was not reviewed. We found that
none of the counterterrorism audio backlog was in the highest
of the FBI's five priority levels, that almost all of the
backlog was in cases designated in the second and third highest
priority levels.
With respect to counterintelligence collections, the amount
of unreviewed material is much larger and has also increased
since our previous report.
Our review also found that a continuing issue for the FBI
is the time it takes to hire contract linguists. According to
even the FBI's statistics, the average time to hire a FBI
contract linguist has increased from 13 months to 14 months.
In sum, our follow-up review found that the FBI has made
progress in improving the operations of its translation
program, but key deficiencies remain.
While I believe the FBI is moving in the right direction,
it needs to make further progress in its foreign language
program as well as in other critical areas. To assist in these
challenges the FBI will continue to conduct reviews in these
important FBI programs.
That concludes my statement and I would be pleased to
answer any questions.
[The prepared statement of Mr. Fine appears as a submission
for the record.]
Chairman Specter. Thank you very much, Inspector General
Fine.
I will not turn to former Congressman Lee Hamilton, a
colleague on the Hill with both Senator Leahy and myself for
many years. He has served some 34 years in the Congress before
undertaking activities with the Woodrow Wilson International
Center for Scholars. Congressman Hamilton's resume is so long,
it is difficult not to get lost in it. While a member of the
House of Representatives for some 34 years, he was Chairman of
the Permanent Select Committee on Intelligence, Chair of the
Joint Economic Committee, Chair of the Joint Committee on the
Organization of Congress, and without objection, we will put a
full copy of his resume into the record because it is very
long.
He was Co-Chair with former Senator Howard Baker on the
Baker-Hamilton Commission to investigate security lapses at Los
Alamos, and his most recent post was Vice Chairman of the 9/11
Commission which did such an extraordinary job in leading to
the revisions of our National intelligence structure.
A graduate of DePauw University, Indiana University School
of Law, attended the Goethe University in Frankfurt, Germany.
While this is the last line, it may be the most important,
former high school and college basketball star and a member of
the Indiana Basketball Hall of Fame, which is no mean
accomplishment.
Thank you for joining us, Congressman Hamilton, and we look
forward to your testimony.
STATEMENT OF LEE H. HAMILTON, PRESIDENT AND DIRECTOR, WOODROW
WILSON INTERNATIONAL CENTER FOR SCHOLARS, WASHINGTON, D.C.
Mr. Hamilton. Thank you, Chairman Specter. Of course the
reason I was elected 34 times was that I was in the Basketball
Hall of Fame. I think that was the chief reason.
[Laughter.]
Mr. Hamilton. Chairman Specter and Senator Leahy, I am
delighted to be with you this morning.
I think the best thing for me to do is start with my
conclusion, and that is simply to say that on the 9/11
Commission we said that our recommendation was to leave
counterterrorism intelligence collection in the United States
with the FBI, and that that assessment requires that the FBI
make an all-out effort to institutionalize change, and if it
does that, it can do the job.
We still hold to that assessment. We believe that Director
Mueller is making a very strong effort to effect change. We
believe the obstacles are immense. We applaud the progress that
he has made. We urge him to forge ahead, and we want to give
him our support so that he can get the job done. We want to try
to be helpful and constructive. We believe that the FBI has
been reforming itself for 4 years, and everybody recognizes, as
does this Committee for sure, there are still significant
deficiencies. I will mention then in just a moment. It is fair,
however, to ask the FBI how long is it going to take to make
these reforms? Director Mueller's timeframe for effecting
reform at the FBI is not, should not be infinite.
The United States has not been attacked at home since 9/11,
but we all understand the threat of terrorism is very real. It
is also true that the threat to reform is real. The threat is
inertia and complacency. We need to maintain a sense of urgency
to push the reform forward as quickly as possible. I believe
this Committee has a very important job to do with its
expertise in providing oversight to the Director, and I am
pleased to see you had this hearing this morning.
Let me identify very quickly for you the areas that I think
need real emphasis with regard to the FBI's progress, and that
you need to watch carefully. One of course, as you have heard
about already, that is the question of analysis. The FBI must
have a strong analytical capability to drive and to focus its
work. The traditional division between the agent and the non-
agent--and we all know that in the past being an agent puts you
in a very superior position in the FBI. The FBI, however, now,
with its new function needs to have the best possible analysis.
The collection of intelligence is not worthy very much if it is
not adequately translated into realistic threat assignments.
The FBI did not perform that job prior to 9/11.
Doing the job well has to be a priority. You cannot decide
what actions to take, you cannot decide what priorities to
make, if you cannot assess the nature of the threat. So the
Bureau needs to become a premiere agency for analysis. In order
to do that it has to give analytical capability the attention
and respect that it deserves. There have been some problems, as
have been cited for this Committee, with regard to attrition
rate for analysts and many other things.
A second point is information sharing. The biggest single
impediment to all source analysis is the resistance to sharing
information. We found of course that sharing the right
information with the right people in a timely fashion is
critical, and we again, and again, in the report stress the
necessity of sharing intelligence.
Now, there are a number of barriers to that, and so
breaking down those barriers has to be a very high priority.
You have to motive institutions and you have to motivate
individuals to share information. Congress created this
position of the Program Manager--he is sitting with us this
morning--for Counterterrorism Information, sharing across the
Federal Government and with State and local agencies, and also
as appropriate with the private sector. But if you are going to
be effective in sharing information, you have to have
leadership at the top.
The success of information sharing needs the personal
attention and the support of the Director of the FBI. It needs
the personal support and direction of the Director of National
Intelligence, and it needs the personal attention and support
of the President of the United States. Only the President can
lead a Government-wide effort to bring national security
institutions into the information revolution, and that is
absolutely critical if you are going to have the kind of
information and the kind of analysis of the information that is
necessary to stop terrorism.
Two or three other matters and I will conclude. FBI
management. Obviously there has to be greater stability in
management. Mr. Chairman, you cited the figures early on.
Another point is the relationship between the National Security
Service and the Director of National Intelligence and the FBI.
The FBI is shifting to an all together different paradigm to
prevent counterterrorism, and it has to be institutionalized.
The WMD Commission recommended the National Security Service.
That is a good recommendation because it makes permanent some
of the reforms that we have been talking about.
I see my time is concluding. Let me just say very quickly
that the FBI has to have strong relations with the CIA. The
relationship between the two has to be seamless. We must not
tolerate any more failures to share databases on terrorists
between agencies. The FBI relationship with foreign and
domestic intelligence services is critical and has to be
strengthened, and setting priorities for State and local
government is important as well.
Often I have encountered sheriffs and policemen who say to
me, in this whole effort of counterterrorism, what am I looking
for? What am I trying to get from the FBI? What does the FBI
want from me? The idea is that the FBI of course has to build a
reciprocal relationship.
Finally, let me say the whole question of civil liberties--
you have been talking about that very much this morning--but I
believe it is important for the Director of the FBI, Mr.
Mueller, for Mr. Negroponte and others in leadership to say
loudly and clearly by word and deed on law enforcement,
terrorism prevention and also on the protection of civil
liberties, and that becomes an immensely important part of the
so-called war on terror.
I have gone over things very, very quickly, Mr. Chairman. I
will be glad to elaborate on them, and of course I ask that my
statement be submitted into the record.
Chairman Specter. Without objection, Congressman Hamilton,
your full statement will be made a part of the record.
[The prepared statement of Mr. Hamilton appears as a
submission for the record.]
Chairman Specter. We now turn to Judge William Webster, who
has had a storied career, a Federal Judge in the District Court
in Missouri, Court of Appeals Judge for the Eighth Circuit,
Director of the FBI, Director of the CIA. We will put into the
record his very long list of other public accomplishments.
Amherst College graduate, law degree from Washington
University. A frequent visitor to the Judiciary Committee over
the year. Thank you for joining us, Judge Webster, and the
floor is yours.
STATEMENT OF WILLIAM H. WEBSTER, PARTNER, MILBANK, TWEED,
HADLEY & McCLOY, LLP, WASHINGTON, D.C.
Mr. Webster. Thank you, Chairman Specter, Senator Leahy.
Thank you for the privilege of appearing before you this
morning to discuss generally the role of the FBI in collecting,
assessing, data mining and sharing intelligence of interest to
many agencies, Federal, State and local, who have been waging
the battle against terrorism, especially since the tragedy of
9/11 almost 4 years ago.
While the emphasis is on an examination of progress made
since 9/11, I think, if you will permit me, some reminders of
an earlier period are in order in order to add some context to
what has become the FBI's response to terrorism.
I took office as Director of the Federal Bureau of
Investigation in February 1978 in the wake of the
investigations which led to the Church and Pike Committee
reports. When I called on Vice President Mondale as a new
Director, he presented me with copies of both reports and
admonished me to read them carefully. These reports contained
strong recommendations against the CIA engaging in activities
inside the United States, and discouraged the FBI from engaging
in operational activities abroad. The predominant restrictions
related to ``need to know,'' and that was the hallmark.
In the 14 years that I served first as the Director of the
FBI and then as Director of Central Intelligence, the guidance
that we received from the Department of Justice and our own
legal counsel was strongly influenced by those two
Congressional documents. A reasonable shorthand would be: Stay
away from each other. Beware of using evidence developed
through intelligence sources in criminal investigation, and on
it went.
But of course there were exceptions, and important
cooperation did occur in the worldwide struggle against
terrorism. For example, in 1987 a notorious terrorist, Fawaz
Younis, was located in Cyprus after he had left his Sudanese
sanctuary. The CIA managed to lure him into open waters, where
a U.S. Naval vessel was waiting just over the horizon. The
arrest was effected by FBI special agents, and he was brought
to the United States where he was tried and convicted. There
are other examples, but of course they were largely overseas,
but I mention the fact that it is not true that the FBI and the
CIA could not, when called upon to do so, work closely and
successfully together.
In 1987 when I was Director of Central Intelligence, I
signed a memorandum of understanding with the Director of the
FBI, following the unfortunate Edward Howard investigation in
which the CIA agreed to notify the FBI promptly whenever one of
its employees became a suspect on national security issues.
This is a recurring theme, getting the two organizations
together in a timely way in order to do good work.
The adoption of the PATRIOT Act following the 9/11 tragedy,
shifted the emphasis to ``need to share.'' It was like a large
ship changing course against the tides of Church and Pike.
Getting the word out and understood was doable, but not an easy
task. Moreover, the archaic condition of the Bureau's
electronic case management system, designed during the Church-
Pike Committee days, did not lend itself readily to tasking
from other agencies of the intelligence community. Efforts to
patch what is now a 14-year-old mainframe has been both
expensive and frustrating. I put this right at the top of
problems affecting information sharing by the FBI with other
agencies.
When I chaired a special commission to examine the internal
security provisions of the FBI in the wake of the arrest and
conviction of Robert Hanssen in 2001, we filed four classified
appendices to our report relating to these computer
deficiencies. I believe that more than patchwork, however
expensive, is absolutely required so that the FBI can fulfill
its mandate of sharing the vast amounts of intelligence which
can be mined from its stored data.
Although I have seen reports to the contrary, I believe it
is unfair to attribute problems and information sharing to
cultural attitudes. I believe they are more rightly attributed
to the understandings that flowed from the Church and Pike
Committee reports and were underscored and supported by
departmental guidance and Congressional opposition to domestic
intelligence sharing. In my 9 years at the FBI I found the men
and women ready to respond to new directions that did not
embroil them in unfair charges or put their careers at risk.
The various joint projects, such as counterterrorist centers,
brought the CIA and the FBI closer together in a common cause.
Still, in my view, ``need to share'' is not a total
substitute for ``need to know.'' Sources and methods must be
protected and honored if law enforcement and intelligence
agencies are to be effective in recruiting and utilizing
information obtained at great risk from such sources. There
also continues to exist the problem of the third agency rule,
under which the FBI or the CIA receives sensitive information
from the intelligence agency of another country on condition
that it not be shared outside the agency to whom it is
presented.
I see that my time is expiring if not expired, and I will
try to be fast about this, but I am currently serving as Vice
Chairman of the Advisory Council on Homeland Security, an
organization established by President Bush shortly after the 9/
11 tragedy, and with the creation of the Department of Homeland
Security, we have been directed to work closely with the
Secretary of Homeland Security, one of the challenges to make
important sensitive information available to the Department of
Homeland Security, and at the same time honor the ``need to
know'' principle. There are as many as 100,000 first responder
agencies, police departments, fire departments and so forth,
who are most likely, as pointed out, to be first on scene, and
may also be best suited to prevent a terrorist incident if they
have the needed information.
Homeland Security is entitled to and does receive
intelligence from the CIA, the FBI and other members of the
intelligence community. First responders rarely need to know
the sources of the information or the methods by which the
information was obtained. I believe it is sufficient to supply
these agencies promptly with finished intelligence, which sets
forth the information without disclosing sources or methods.
There may be more exceptions, but this should certainly be the
basic principle if sensitive sources are to be protected.
In 1978 when I took office the three top priorities of the
FBI were organized crime, white-collar crime and foreign
counterintelligence, a considerable shift in gears from the
days of stolen cars and bank robberies. I added terrorism to
that list in 1980.
We have been experiencing approximately 100 terrorist
incidents a year, certainly not of the dimension of the attack
on the World Trade Center, but life-threatening, lethal and a
danger to our society. Within the FBI we focused on getting
there before the bomb went off. Prevention and interdiction
obviously depended upon much better intelligence than we had
had in the past, and we worked on this, developed our sources,
worked effective undercover operations, and acted
preemptorially when appropriate. As I moved to the CIA in 1987,
we were down to 5 or 6 terrorist events. In the year following,
there were none. I attribute this to highly skilled, dedicated
professional law enforcement, and especially to better
intelligence, along with cooperation from friendly agencies in
Canada and other parts of the world.
We have made very substantial progress in coming to grips
with even larger terrorist activities and plotting in the past
few years, but intelligence is the key, as every speaker before
me has said this morning. Without it, the terrorist is likely
to succeed in his terrorist activity, leaving it to law
enforcement to track him down and prosecute him. Prevention
requires intelligence.
In summary, I believe the FBI has significantly transformed
itself to meet the current threats. It does probably need to
improve its analytical capability which historically has been
under developing. Translators are badly needed to keep up with
processing signals intelligence, documents and other important
information. But the biggest challenge in my view is to
confront in a rational way the consequences of an archaic
electronic data system that preceded the PATRIOT Act and would
be considered obsolete by any modern enterprise. It needs a
search engine that can be navigated with much greater speed and
with more precision in locating those dots that were not found
when they were needed.
The FBI deserves a great deal of credit for many forensic
improvements, DNA, the computerization of fingerprints,
psychological profiling and other scientific techniques, and
these efforts should be supported and properly funded, but it
makes no sense to have the best trained special agents I the
world if they are not properly equipped and guided by the best
available information. Sir William Stephenson, the famous ``man
called Intrepid,'' once wrote about the importance of gathering
intelligence and managing the process, and he concluded that in
the integrity of that guardianship lies the hope of free people
to endure and prevail.
If you will permit me another moment, and with all respect,
when we talk about guardianship there is also the matter of
oversight. The special commission on 9/11 strongly recommended
that the Congress streamlined its oversight procedures, and in
my view, this has not yet happened. It is my understanding that
there are some 88 Congressional committees that claim oversight
responsibility in the Department of Homeland Security alone,
and this needs to be addressed.
Finally, we now have a new organization in the intelligence
community and a new leader. While the 200-page Act covers many
of the issues, the key authorities of the Director of National
Intelligence were not as expressly granted as I would have
liked, but I believe that Director Negroponte will assert them
fully as needed. Of paramount importance is his responsibility
to insist upon the level of cooperation and sharing among the
members of the intelligence community that I believe the
President and Congress--
Chairman Specter. Judge Webster, how much longer would you
need?
Mr. Webster. I am finishing my sentence and that is it.
That I believe the President and Congress intended in this
reorganization, and that it be done with appropriate protection
of sources and methods so essential to our National security.
And as Congressman Hamilton, and in preserving at the same time
the civil rights that are so important to us.
Thank you.
[The prepared statement of Mr. Webster appears as a
submission for the record.]
Chairman Specter. Thank you very much, Judge Webster.
Our final witness on this panel is Mr. John Russack,
recently designated by the President to be Program Manager,
responsible for terrorism information sharing pursuant to
Intelligence Reform and Terrorism Prevention Act.
Mr. Russack has a long, distinguished career in the Navy,
Navy Captain, commanded the Aegis cruiser, has worked in the
CIA as Director of Operations, has worked with the CIA's
Nonproliferation Center, and I note is a graduate of the
University of Kansas. Are you a native Kansan, Mr. Russack?
Mr. Russack. No, sir, I am not.
Chairman Specter. Too bad for you.
[Laughter.]
Senator Leahy. In case you did not realize, the Chairman
is.
Chairman Specter. And also ROTC graduate, but Air Force. If
it had stuck to ROTC I might have had a distinguished career by
this time. But I note your Kansas affiliation and I could not
resist the temptation to ask you.
Thank you for joining us, and we look forward to your
testimony.
STATEMENT OF JOHN A. RUSSACKS, PROGRAM MANAGER, INFORMATION
SHARING ENVIRONMENT, DIRECTOR OF NATIONAL INTELLIGENCE,
WASHINGTON, D.C.
Mr. Russack. Thank you, sir. Thank you for the opportunity
to be here and appear before you and Senator Leahy and to join
this panel.
As you noted, I was appointed by the President in April to
be the Program Manger for the Counterterrorism Information
Sharing Environment. I am responsible for planning and
overseeing the implementation of that environment, to make
improvements on the already existing environment, to work on
policies, procedures, guidelines, rules and standards that
pertain to the environment, and then I am to support, monitor
and assess the implementation, and in fact, report progress on
the implementation to the Congress, to you, sir, to Senator
Leahy, and to the President of the United States.
Let me first of all say that the mandate for the Program
Manager extends across the Federal Government, and then up and
down from the Federal Government to State, local, tribal and
the private sector. So the environment is not just Federal, it
is all-encompassing. We are sharing information better than we
ever have. However, the present environment at best is flawed.
We need to share it even better than we do today, and that is
my mandate. I am a volunteer for this job. I care very deeply
about information sharing and in fact about the national
security of my country. I will be assisted in accomplishing
this task by a very small staff of approximately 25 people,
most of whom will come from detailees from other parts of our
Government. I will probably hire about 5 or 6 people, and the
remaining 20 will come, as I said, as detailees.
I will also be assisted in the job by an Information
Sharing Council. As you recall, Executive Order 13356, which
was signed by the President last August, started work on the
information sharing environment. In fact, I led the mission
team responsible for Section 5, which was a plan for the
information sharing environment. We divided in half, a
technical side and a mission side. So I am familiar with the
issue, and in fact the impediments to information sharing.
I was required by law to issue to the Congress and to the
President a report on the 15th of June. I did that. The basic
content of that report was a summary of the impediments to
information sharing. And to sum that report up, sir, I would
say that the impediments are not the flow of electrons. In
fact, technology is an enabler to information sharing. Most of
the impediments that we have today to information sharing have
to do with roles, missions, responsibilities that sometimes
overlap, occasionally they conflict. They are training, they
are fostering changes in the way we do business, and I think
that we can achieve over the next 2 years--I have been
appointed to this job for 2 years, and at the end of 2 years I
make a recommendation to the Congress and to the President on
how the information sharing environment is at the end of 2
years, and what the future of the present position I have been
appointed to will be.
But I think we can make dramatic improvements in
information sharing. I will also say that most of the low-
hanging fruit has been plucked. What is left to be done is
really hard, and I welcome your oversight, and I look forward
to reporting to you and to Senator Leahy, and the rest of the
Committee on our progress as we make information sharing better
than it presently is today.
Thank you, sir.
[The prepared statement of Mr. Russack appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Russack.
Mr. Fine, you have published reports going into some detail
as to the failures on the FBI, noting five missed opportunities
to prevent the September 11th attacks, lack of effective
analysis, failure to use the Foreign Intelligence Surveillance
Act. Beyond the role of being a critic, you get very, very
deeply involved in all of these issues. Have you made any
affirmative suggestions to the Bureau as to how to solve these
problems? As I listen to the plight of the Bureau, there are
lots of difficulties, and a constant theme is things are
improving but not enough. But from your vantage point as
Inspector General, it seems to me you would have the capacity
to--maybe it is beyond your purview, but your purview could be
changed--to make suggestions to the FBI as to how they ought to
correct these problems. Have you worked that angle of the
issues?
Mr. Fine. Yes, Mr. Chairman, we absolutely do that. One of
our missions is obviously to look backwards and find out what
went wrong and to assess the current state of affairs within
the FBI, and we have found key deficiencies, but we do believe
it is one of our most important missions to also provide
recommendations to them on how to improve the operations of
these very important programs.
In each of our reports we make recommendations to the FBI.
In our information technology report we made a series of
recommendations on how to better oversee the acquisition of
information technology, in our intelligence analyst reports as
well. So in each of our reports we provide recommendations to
them and we follow up on them to see whether they are
implementing our recommendations. In many cases they say they
have or will take corrective action. With healthy skepticism we
try and go back and see whether they do, and in fact, that was
the genesis of our follow-up report on the foreign language
translation. We did our report in July 2004. We made a series
of recommendations, and we wanted to see whether they had
actually implemented those recommendations. They had some. They
have more progress to go on others as well.
Chairman Specter. Congressman Hamilton, your leadership on
the 9/11 Commission, along with the Chairman was certainly
exemplary, and you are pursuing the Government,
notwithstanding--you filed your report. I do not know that your
Commission is over. And you have articulated a sense of urgency
which I think is right on the button. What are the plans for
the 9/11 Commission to raise hell with the intelligence
agencies to see that they follow your advice?
Mr. Hamilton. Well, the Commission, Senator, of course if
out of business. It was a statutory commission and our time
expired last year. We did move ahead, Tom Kean and I, and
raised some money privately for a public discourse project in
order to try to push forward some of the recommendations not
adopted.
Chairman Specter. But are you not still in the wings,
fronting the Federal agencies?
Mr. Hamilton. We are. We took very seriously the
recommendations we made, and we want to push them forward. We
have been really pleased really that many of them have been
adopted by the President and by the Congress, but we feel the
number is still dangling out there, including the one that
Judge Webster mentioned a moment ago on Congress. Congress has
not done what it ought to do with regard to getting its
oversight function more robust, and that is a serious problem I
think, and there are other recommendations we are going to push
forward. We are pushing forward the idea that Homeland Security
funds need to be distributed on a risk assessment basis and not
on the basis of politics. We are pushing forward the idea that
a part of the radial spectrum should be dedicated to first
responders. That is a no-brainer from my standpoint. I cannot
understand why it takes so long to get it done.
We are pushing forward the idea that much, much more
emphasis has to be put on the weapons of mass destruction
coming into the hands of terrorists. We have a lot of things we
are pushing on, but none really any more important than what we
are talking about this morning, trying to get the FBI to make
the kind of changes that are necessary.
I sit here this morning and I listen to all of these things
that are being said, and I think they are almost all on the
mark, and yet it sounds to me very much like business as usual.
And business as usual is not satisfactory.
Chairman Specter. How do we change that?
Mr. Hamilton. Maybe London will change it. Maybe Madrid
changes it. I do not know. But I think there does need to be a
much greater sense of urgency. When I hear about some of these
reforms not coming into effect till 2009, I say to myself, you
are just giving the terrorist activities an opening, and the
risk goes up for the American people the longer you extend
these deadlines, the more time you take to make these changes.
I agree with everything that has been said about the
remarkable that Director Mueller has made, but he needs a lot
of support from many of us in order to get this job done with
greater sense of urgency.
Chairman Specter. I am going to go over a little on time. I
want to ask a question of both Judge Webster and Mr. Russack
and the hour is growing late, so I will try to be brief.
Judge Webster, you have the unique background of having
been the Director of both the FBI and the CIA, and you cite the
Fawaz Younis case which is a fascinating case. I recall that.
About 1983--I would have to go back and look at the record--but
I believe that I posed in one of the hearings where you
testified an idea that I had about kidnaping terrorists. There
was a U.S. Supreme Court decision in 1886, where a man accused
of fraud in Illinois went to Peru, and the Supreme Court was
very blunt in identifying his return to Illinois to face
criminal charges as having been kidnaped. Fawaz Younis was not
technically kidnaped because he was on the Mediterranean, but
you cite that as an illustration of cooperation between the FBI
and the CIA.
What insights do you have as a result of your being
Director of both of those agencies to find some way to have
them do a better job in talking to each other, or do you think
that problem has now been solved?
Mr. Webster. Well, I recited at perhaps too great length
the consequences of the Church-Pike Committee reports that
drove it in the other direction, and the sudden change that
occurred with the PATRIOT Act. I have watched and believe that
the two organizations sincerely desire to work together. They
have different missions, like the nature of the intelligence
that they gather and whether it can be used in a criminal court
under the Brady rule if it is offered in evidence and they have
to tell where it came from.
So some of these problems still need to be addressed, and
Congress can play a role in that. But I think the toughest
problem--and I know that I am making more of it than I should
in terms of the time I take--is getting the FBI to the point
where it is capable of supplying the vast amount of information
that the CIA and other agencies legitimately want to know.
Their old mainframe was designed to chase criminals, and it was
organized on an investigative structure that only permitted you
to ask one or two questions in order to get answers. It is
really archaic, and although Congress has generously given many
millions of dollars to fix it, I do not believe it is going to
be fixed until people are brought in who understand it. I would
say get Bill Gates and tell him to take 6 months and help us
solve our problem.
In the past I the construct of this, we were anxious to get
in the computers. I started the computerization of fingerprints
100 years ago, but we tried to do it too much with our own
people, thinking we could do anything that we set our minds to
do, and we did not identify and bring in the kind of expertise
that was necessary. It is badly needed now. It is indispensable
now. When I hear talk about providing more agents, that is
great, and it has a great deal of appeal to be able to tell
constituents that I got 1,000 more agents for the FBI, but
there is no sex appeal in getting a new computer. But my point
I tried to make in my remarks was you have to--if you are going
to have the best trained people in the world, you have to equip
them appropriately rather just add to their numbers, and that
is where we need it.
Chairman Specter. I have another question or two for you,
Judge Webster, and for Mr. Russack. But I am going to yield now
to Senator Leahy.
Senator Leahy. I was struck by the comments made by several
on oversight and other things. Congressman Hamilton is an old
friend, whom I respect greatly, and I would note on one thing,
we talk about the number of committees that might have
oversight, there has been precious little oversight. Except for
Senator Specter and a couple of others, there really has not
been. There have been many requests for oversight and for years
after 9/11 we were told that it might be embarrassing to the
administration to have real oversight, so we should not have
any. And a complacent and compliant Congress went along with
that.
We do not look at some of these problems that Inspector
General Fine has pointed out, and he incidentally, is one of
the finest public servants I have ever known, and has done
great, great service to all of us, to the FBI and to the
Department of Justice, to the Congress, and we do not take
advantage of that adequately. We do not follow up on a number
of things. We can spend 4 months in the Senate talking about
nuclear options, and the American public is not fooled that we
are not talking about somebody setting off a nuclear bomb, but
we are talking arcane procedural matters within the Senate.
We can certainly ramp up and go fast and tell the Schiavo
family, irrespective of the tragedy of their family,
irrespective of the fact that courts have done that, by golly,
the Congress can step in and we can make the decision for them
because it happens to be the headline that day. We have fallen
down on the job. The 9/11 Commission was helpful. I do not know
how many people were paying attention to it.
The question I have of Mr. Russack is--and I am trying to
do this without going into classified areas so I will be
somewhat general--we talk about the weaknesses of threat
assessments. I do not find an awful lot of products that look
across the intelligence community and all the various aspects
as you have, the nature, range, likelihood and target of long-
term terrorist threats. One of the greatest terrorist events in
the United States was Oklahoma City, and I like to think that a
white, American, former military, devout religious person and
all that, that that is not a fair assessment to jump up, and
let us hope it is unique. But I find when I talk to State and
local authorities, who are oftentimes the ones who are going to
see these people first, that there is confusion about the roles
of the FBI, DHS, the Terrorist Threat Integration Center, how
that works.
Are there impediments here? Can we improve the area of
threat assessments? I realize we do a lot of the symbolism
things. We have a 90-year-old women going through the airport
being told to take her shoes off, and has to explain with some
desperation the nurse at the nursing home usually does that,
she cannot do it. That may make us feel safer, but are there
impediments to improvement in the area of threat assessments?
Mr. Russack. Senator I think there are some impediments.
Some of what you ask me goes well beyond the realm of my job as
the Program Manager for Information Sharing, but what I see
from my vantage point is a real effort on the part of--let us
just take NCTC, the National Counterterrorism Center, as an
example. I see a real concerted effort on the part of
organizations like NCTC to do a better job in threat
assessments.
Even if you have a better threat assessment, you also bring
up the problem of impediments to sharing that information, and
you cited an example from State and local government. I think
there are impediments to sharing. I think what we will do on
the Program Manager's staff for information sharing and then
the Information Sharing Council is try and codify or make
better, develop the business rules for information sharing, and
provide State and local government a clearer point of contact.
In other words, make unmurky the presently at least somewhat
murky waters. Try and make it clearer what they need to worry
about, and in fact, try and share information, all forms of
information with them, you know, keeping a balance, as Judge
Webster said, between need to share and need to protect sources
and methods.
I think we can share more and still protect sources and
methods, and at the same time, give State, local, tribal and
the private sector better information with which not only to
act upon and hopefully prevent terrorist activities, but also
in the case of the private sector, State, local and tribal, to
also protect what they need to protect.
Senator Leahy. Thank you. I appreciate that.
We have gone over time. I want to thank both Lee Hamilton
and Bill Webster. They have given enormous pro bono time, and I
appreciate this. It is sort of like you leave Government and
you think you have left, but nobody lets you leave. I
appreciate the time you spend on that. And within Government,
superb people like Mr. Russack and Mr. Fine. I think a lot of
us forget how fortunate we are in this country, people not only
in Government, but people who have left Government and are
willing to come back.
Mr. Hamilton. Senator, I thank you for that. I want to
emphasize here the importance of this job of Program Manager.
The whole thrust of the 9/11 Commission report was you got to
share information better. The impediments are not hard to find.
The impediments are stovepiping within agencies. They do not
want to share information across agencies. The impediments are
so much emphasis on the need to know that you ignore the need
to share. Bill Webster is absolutely correct, you have to get
the right balance in there, but for years and years in the
intelligence community, the whole emphasis was on need to know,
need to know, need to know. That excluded a lot of people, and
it brought about in fairly direct terms, 9/11. We simply did
not--
Senator Leahy. Look at the people from Oklahoma who were
out--
Mr. Hamilton. We simply did not share the information we
needed. Okay. Now you come along with a new structure, and the
place where it all comes together is in Mr. Russack's position.
He is the Program Manager. He is the fellow that has to see
that we get all of this information shared. And if you do not
get that information shared across agencies, if you do not get
the information shared vertically within the FBI, as well as
horizontally across various intelligence agencies, you are not
going to have the most effective means of fighting terrorism.
So the Program Manager's position has to be empowered. He
has to have the resources. He has to have the people. He has to
have the political support in order to get the job done.
Senator Leahy. I agree. That is why my first question was
to Mr. Russack. We are counting on people like him pulling
these things together. I think of those people who are trained
to be pilots, and the area FBI call in with their concerns to
headquarters and being basically told, no, there is nothing for
you to worry about, and we do not want you to keep bothering
us. Go about, I guess, catching bank robbers or car thieves or
something, and of course, these are the pilots that flew
airplanes in 9/11.
Inspector General Fine, if I might, I have one more
question. I keep going to this linguist area. I have the
frustration of many of us, how few Americans actually learn
other languages or can speak other languages and how it hampers
us in dealing now with some very, very serious problems. You
conducted an investigation, you did the audit of the
translation program. I have that from July of 2004. But you
conducted an investigation into the allegations of lax security
and possible espionage as made by a former contract linguist.
And you made some recommendations regrading security in the
translation program. How do you feel about the security of the
program? How has the FBI responded to the recommendations you
have made?
Mr. Fine. I think they have generally responded well. We
followed up on that and tried to provide an assessment of where
they are now in our follow-up report. They do now have written
guidelines for risk assessments and how to judge whether there
are risks involved with the hiring of certain contractors.
There were no written guidelines in the past. They now have
instituted a procedure whereby the supervisors assign who is
going to be translating which materials, rather than the
linguists themselves, which created problems in that case. They
are trying to train the linguists better, and they are also
providing better tracking of which linguists translate which
material so there can be an audit trail.
So they have made some changes. Their policy manuals are
not complete, and they are still making further changes, but I
think they are generally receptive to it.
I do believe in the importance of oversight, the importance
of Congressional oversight and Inspector General oversight, and
we see that when we come back and try and follow up, that often
spurs them into a sense of urgency to get it done, and I think
that is what is happening here. I do think they are receptive
to it, but needs more that should happen.
Senator Leahy. Thank you very much.
Thank you, Mr. Chairman. If I have any other questions, I
will submit them later.
Chairman Specter. Thank you, Senator Leahy, for your
service in 3 hours plus, Ranking Member. Where are all of our
colleagues now?
Senator Leahy. I think what they are doing is frantically
trying to rearrange the schedule now that the Republican
leadership is overriding you and saying we want to have the
Roberts hearing in August. So I am hoping you are able to
override the override.
Chairman Specter. If we go back to that, there will be no
more questions for anybody except Judge Roberts.
[Laughter.]
Chairman Specter. Mr. Russack, you said you have a 2-year
appointment and at the end of 2 years your office expires?
Mr. Russack. Yes, sir. The Intelligence Reform and
Terrorism Prevention Act required that the President designate
me, and it says in the law that I shall be designated for a
period of 2 years. In fact, there is a caveat in there that
says--
Chairman Specter. Does the whole office sunset at 2 years?
Mr. Russack. Excuse me, sir?
Chairman Specter. Does the whole office sunset? FBI
Director Mueller should have heard about a 2-year sunset for
the entire office. He would have been appalled.
Mr. Russack. Yes, it does.
Chairman Specter. He does not want--
Mr. Russack. As a matter of fact, there is a caveat that
says it could actually expire sooner if I do not do a good job,
so I am committed to do a very good job.
Chairman Specter. Are you doing a good job? To ask you a
leading question?
Mr. Russack. I think the answer to that question is we are
just getting started.
Chairman Specter. I asked you the leading question for a
purpose. I am advised by counsel that you do not have any
employees.
Mr. Russack. Well, I have one. I have one and I have two
contractors, so there are four of us right now. So we are
making progress, Mr. Chairman. In fact--
Chairman Specter. Progress?
Mr. Russack. Yes, sir.
Chairman Specter. Sufficient progress, Congressman
Hamilton?
Mr. Hamilton. It is not even close.
Chairman Specter. Your office has been in existence for a
year, Mr. Russack, and to have one employee and two
contractors, that sounds very nebulous to me.
Mr. Russack. Mr. Chairman, the office has not been in
existence for a year. In fact, I was designated in April, and
in June it was decided that I would work for the President
through the DNI. So we have--
Chairman Specter. Was the Program Manager for Information
Sharing, was that position created a year ago?
Mr. Russack. It was created with a law, and the law said
that--
Chairman Specter. When was the law signed?
Mr. Russack. I am not exactly sure. I know it was signed in
2004.
Chairman Specter. Could it have been a year ago?
Mr. Hamilton. It was December. It was December last year.
Chairman Specter. Is that sufficient progress, Inspector
General? We are going to take a vote here, Mr. Russack.
[Laughter.]
Chairman Specter. You may lose your office sooner.
[Laughter.]
Chairman Specter. How do we get the sense of urgency? I am
overriding the question, Mr. Fine. I am withdrawing the
question.
How do we get the sense of urgency? Congressman Hamilton,
do you--that is right on the head. Now, how do you do it? If
you have some ideas and bring them to this Committee, we can
have oversight, except that I am not sure Judge Webster likes
it because we are one of 70 some committees exercising
oversight, and they all have long hearings. This is a short
hearing for oversight.
[Laughter.]
Chairman Specter. How do we get the sense of urgency,
Congressman Hamilton?
Mr. Hamilton. I think oversight is a very tough problem for
the Congress. I do not know of any way to do it, Senator,
except the way you are doing it. You have got a marvelous staff
in back of you, and your job, it seems to me, is to be both a
critic and a partner with regard to the FBI. You want to help
them as much as you can, but at the same time you want to point
out areas where you think better performance can be made. One
of those things is to convey that sense of urgency.
All of us on the 9/11 Commission are very worried about
this. There was a real sense of urgency in this country after
9/11. And we have been very fortunate not to have had an attack
here. But so many things intervene, that we tend to lose it. I
think one of the responsibilities of a Congressional Committee
that exercises oversight is to try to impress upon the Director
and his staff that sense of urgency.
Chairman Specter. Judge Webster, you are currently the Vice
Chairman of the Homeland Security Advisory Council. So are you
still on the payroll?
Mr. Webster. No, I am not.
[Laughter.]
Chairman Specter. No payroll for that, but at least you
have an official position. Unlike the 9/11 Commission, your
Advisory Council is in business.
Mr. Webster. We are in business.
Chairman Specter. Are you raising hell with the Homeland
Security folks to give them a sense of urgency?
Mr. Webster. We are trying to do that, and we are actively
inspecting sites to see what progress has been made in beefing
up the various agencies. We have undertaken task forces, one of
which addresses the whole issue of public source information
and how it could be marshaled to help our joint effort. It is a
Committee of some very good people, I might say, and they have
taken on individual task force assignments.
Chairman Specter. Mr. Russack, we want to help you. If I
were to write a scathing letter, whom would I address it to to
give you some help?
Mr. Russack. Well, first of all, before I answer that
question, let me just tell you, sir, that we have been working
hard on this, even though we have a very small staff.
Chairman Specter. Do not need any help?
Mr. Russack. Yes, sir. I mean I am not saying id o not need
any help. In fact, what we just did is write a letter to the
deputies of the departments and agencies within the Federal
Government and define the positions that we are trying to fill,
and I can assure you that there is a sense of urgency to get
those positions filled. Yes, I do need help.
As Congressman Hamilton said, I accept your criticism. I
would like to point out that we are very small, we are working
very hard. Filling the positions that we have defined is going
to be critically important, and I think you write your letter,
since I work for the President through the DNI, to the Director
of National Intelligence, and express your concerns.
But I can also tell you that the Director of National
Intelligence cares very deeply about this office and he is
committed to helping. So I accept your help in addition, sir.
Chairman Specter. I know the Director, and I am going to
write to him.
They just brought me another bottle of Gatorade which is
indispensable to sustain me, so we can go another 40 minutes.
[Laughter.]
Chairman Specter. Thank you, gentleman, for coming in, and
thank you for your patience in waiting through two preliminary
hours, and we are more than an hour into this panel. You bring
a great deal of experience and a great deal of expertise to
these issues.
And this Committee is going to be undertaking oversight on
a very extensive basis, and it is not too gratifying sometimes
because the same problems seem to recur, and the sense of
urgency really is hard to transmit.
You, Mr. Russack, have a really critical position by the
way the title sounds, and your background in the Navy and CIA
and DCI, you are really in a position to do something. So
consider yourself a quasi-adjunct to the Judiciary Committee,
and we are going to write to the Director, and let us know if
you need more help.
Mr. Russack. I will, sir.
Chairman Specter. Thank you all. That concludes our
hearing.
[Whereupon, at 12:40 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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