[Senate Hearing 110-910]
[From the U.S. Government Publishing Office]
S. Hrg. 110-910
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 5, 2008
__________
Serial No. J-110-78
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
53-361 WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared
statement...................................................... 94
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 92
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Mueller, Robert S. III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.......... 5
QUESTIONS AND ANSWERS
Responses of Robert S. Mueller, III, to questions submitted by
Senators Leahy, Feingold, Schumer, Durbin, and Grassley (Note:
Answers to Senator Kennedy were not received at the time of
printing, November 3, 2009).................................... 40
SUBMISSIONS FOR THE RECORD
Mueller, Robert S. III, Director, Federal Bureau of
Investigation, Department of Justice, Washington, D.C.,
statement...................................................... 70
OVERSIGHT OF THE FEDERAL BUREAU OF INVESTIGATION
----------
WEDNESDAY, MARCH 5, 2008
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-106, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Kennedy, Kohl, Feinstein, Feingold,
Schumer, Cardin, Whitehouse, Specter, Hatch, Grassley, and Kyl.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Sometimes it is hard to get used to this
cavernous room, but today's hearing will continue our oversight
of the Department of Justice. We are going to examine the
effectiveness of the Federal Bureau of Investigation in
carrying out its responsibilities, and I welcome back our FBI
Director. I thank him for appearing today, and I think he would
probably join me in thanking the hard-working men and women of
the FBI for their commitment not only here but in many other
countries to keep all Americans safe.
We have to look at some of the issues we raised last year
and see where we are, what progress has been made. I talked
with the Director yesterday, and, again, I commend him in our
meetings. Whether personal meetings or over the phone, he has
always been very open and very candid, whether we are talking
on things of praise or things of criticism.
But I told him I was astonished to learn about the FBI
failure in an instance of paying bills that resulted in
telecommunications companies shutting off wiretaps, including
one FISA wiretap. The reason I mention that, I understand from
him--and you will probably speak further of this about how that
happened, but after the Bush-Cheney administration and the
congressional Republicans refused to extend the Protect America
Act, of course, the statute expired, but the surveillance
authorized under that statute continues, contrary to some of
the statements made by the President's Press Secretary.
Ironically, of course, the only shutdown of surveillance
has been when the telecom companies ceased surveillance because
they were not paid their fees. It had nothing to do with
whether the Act was in place or not but whether the Government
paid the bills. And that, of course, is--well, you know how I
feel about that.
Then the confidence and credibility of the FBI took a hit
on increasingly potent technologies. There are recent reports
saying the FBI is engaged in a $1 billion program--a $1 billion
program--to create a massive biometric database, compiling not
just fingerprints but eye scans, palm prints, facial features,
and other identifying features of millions of people.
I worry about that in a number of areas. I want to make
sure the FBI has mastered emerging and enhanced technologies in
the fight against crime. We know the difficulties there were in
past years on the file sharing and other technological problems
the FBI had. But we also have to look at the impact that such a
database can have on the privacy rights and civil liberties of
Americans. We want to make sure the FBI acts in ways that
protect and enhance the rights and values that define us as
Americans, that make us a unique society, and not undermine
them.
We know what happened with the internal computer network.
We know what has happened with national security letters and
exigent letters, so there has to be a concern that if we are
going to embark on anything like this, which goes so much into
the privacy of Americans, that we know what we are doing.
I would urge the Director to continue to work to address
the backlog in the National Name Check Program. Delays and
backlogs there contribute to the inaction by the Department of
Homeland Security on citizenship applications and on
applications for visas by those who have aided American forces
in Iraq.
Last year we talked about the FBI's use of the national
security letters, and what appeared to be improper use by some,
and the exigent letters; the lag in hiring agents proficient in
Arabic; and, of course, the problems with the computer systems.
And then we talked about the Inspector General's findings of
widespread illegal and improper use of national security
letters in obtaining Americans' phone and financial records.
Everybody wants to stop terrorists, but also, though, as
Americans we believe in our privacy rights, and we want those
protected, because at that time the Inspector General found
that the FBI repeatedly abused national security letters and
failed to report these violations. The same with the FBI's use
of so-called exigent letters, which were used to obtain
Americans' phone records, often when there was no emergency and
never with a follow-up subpoena.
And I discussed this with the Director. I know he shared my
concern and the fact that there has to be a better chain of
command for this. You cannot just have an FBI agent who decides
he would like to obtain an American's records, bank records or
anything else, and do it just because they want to.
We do have the information technology we have discussed
with the FBI, and I want to know where they are on Sentinel. We
need an update on the FBI's efforts to hire, train, and utilize
its intelligence analysts, especially those proficient in
Arabic.
Now, it is not all down by any means. As I said, imagine
this country without the FBI and what they have been able to do
for us.
I discussed one issue especially with the Director
yesterday when we met, and I want to commend him, but I also
want to commend the FBI. They, along with our military, have
led on the topic of torture and the effective interrogation of
detainees.
Mr. Director, you and the FBI have consistently been a
voice of reason on these issues, and I think you have received
applause, and justly so, from Americans of all political
stripes. It seems to me that the FBI has concluded that tried
and true interrogation tactics, which do not use cruelty and
torture, are not only more consistent with our laws and our
values, but are often more effective in obtaining information.
And I think just as I have commended the military in the
military handbook and what they have done on this, I commend
you, Mr. Director; but I also commend you for making it very
clear how the people in your Bureau will work. And I commend
those agents--some of which we cannot discuss in open session,
and you and I have discussed more in a classified session--
those agents who have shown their commitment to the values that
you have laid down and the values this country has laid down on
that subject.
Also, we note that violent crime has been back on the rise
in recent years. We have to make sure that there is enough FBI
resources dedicated to it. You are also uniquely suited to take
on fraud and corruption, and it is not acceptable to this
Chairman when other agencies and organizations seek to
undermine the FBI's commitment in those areas. You are uniquely
suited for that, and I want to make sure that you are able to
commit and recommit yourself to your best traditions. And to
you personally, Mr. Director, I appreciate your openness to
oversight and accountability that has distinguished you from
many others in this town today.
Senator Specter, I yield to you for whatever amount of time
you want.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman, and
welcome, Director Mueller. We thank you for your service, for
the work done by the Federal Bureau of Investigation, some
30,000 employees, 12,568 Special Agents, and with each passing
day, we seem to be giving you more duties without, in my
judgment, a commensurate increase in resources.
Just one word on a personal note. Years ago, I was in the
Air Force in the Office of Special Investigations and had the
opportunity to go to an 8-week training course conducted by FBI
agents. When the Department of the Air Force was created, the
Air Force sought a ranking FBI official, and Joseph Carroll,
who came in as a colonel, later became a two-star general, and
that training has stayed with me to this day. I do not know
whether it has done me a whole lot of good, but the training
was excellent.
Director Mueller, there are many subjects which are right
on the front burner where you agency is intimately involved.
The No. 1 subject is the war on terrorism, and there are still
looming questions as to whether there is sufficient
coordination. There had been the generalization that had there
been coordination between CIA and FBI, 9/11 might have been
prevented. We are now in the midst of work on reauthorization
of the foreign intelligence surveillance issue, a very hotly
contested issue on Capitol Hill, now hung up on the issue of
retroactive immunity for telephone companies.
I have offered a substitute amendment which would enable
the Government to continue to collect the data but not close
down the courts. It is my judgment that Congress has been very
ineffective in oversight on the expansion of executive power,
and I believe we need very extensive executive power to deal
with terrorism.
My amendment failed in the Senate. I supported the
legislation even though it granted immunity that I am opposed
to. But it is my hope that we can work out an accommodation
with the House of Representatives. There have been ongoing
discussions, which I participated in personally, and there is
some, I think, considerable sentiment on the House side for my
substitute amendment.
The issue of state secrets is one of great importance.
Legislation has recently been introduced, where I am a
cosponsor, which seeks to define state secrets, and I would be
interested in your views on that when the time comes for
questions and answers.
There is a growing concern on the question of reporters'
privilege. The Committee has reported out a bill which seeks to
provide some balance on that subject to protect reporters'
sources because the media has been instrumental in the life of
our Republic in exposing corruption and malfeasance and
wrongdoing. And a great concern exists that the cutdown of
sources is going to be very harmful for the public.
I still do not understand the Judith Miller case, why she
was incarcerated for 85 days when it was well known who the
source was of the leak in the Valerie Plame case. Richard
Armitage had been interviewed by the Department of Justice in
October when he had realized that he was the source. Special
counsel was appointed and then began a long chase, which has
had a devastating, chilling effect, in my opinion, on reporters
in this country.
Today we are looking at another matter on the front pages
involving a Pennsylvanian, Tony Lucy, and we looked at the
Hatfill case last year where there were eight journalists
targeted, from ABC, CBS, NBC, Gannett, Newsweek, Washington
Post, the Baltimore Sun, and the L.A. Times.
One other subject briefly, before my time expires, and that
is the issue of how we deal with illegal aliens who have
committed crimes of violence, who are released from jail, can
be detained by the Department of Homeland Security for only 180
days, and then being put back on the streets. That is a problem
which has received very little notoriety compared to the
intensity of the problem. I have been visiting jails in
Pennsylvania and looking into the details of this issue, but
many foreign governments are refusing to take back their
citizens, and we can only hold them for a certain length of
time.
I thank you for coming by yesterday for the informal
discussion, and I am going to get into it in the Q&A. But I
believe we have to search hard to see if there is some way to
retain detention on those individuals consistent with due
process and consistent with our constitutional principles.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
Director Mueller, would you please stand and raise your
right hand? Do you solemnly swear that the testimony you will
give in this matter will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Mueller. I do.
Chairman Leahy. Thank you. Director, please go ahead, and
then we will open it to questions.
STATEMENT OF HON. ROBERT S. MUELLER, III, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Director Mueller. Thank you, Chairman Leahy, Senator
Specter, other Senators on the Committee. I am pleased to be
here today to discuss the FBI's efforts to continue to keep
America safe.
Today in this short statement, I want to give you an
overview of the threats we face today and generally outline the
FBI's efforts to combat those threats.
As you are aware, the FBI's top three priorities are
counterterrorism, counterintelligence, and cyber security.
These priorities are critical to our national security and the
FBI's vital work as a committed member of the intelligence
community. Important, too, are our efforts to protect our
communities from the very real threat of crime, especially
violent crime.
In the counterterrorism arena, al Qaeda continues to
present a critical threat to the homeland, as do groups who are
not a part of al Qaeda's formal structure but who are
affiliates of al Qaeda or other organizations. A particular
challenge in this arena is that posed by self-radicalized,
homegrown extremists. They are difficult to detect, often using
the Internet to train and operate. And here at home, through
our domestic Joint Terrorism Task Forces and abroad through our
legal attaches and international partners, we together share
real-time intelligence in order to fight these terrorists and
their supporters.
With regard to the counterintelligence threat, protecting
our Nation's most sensitive secrets from hostile intelligence
services or others who would do us harm is also a core FBI
mission. We reach out to businesses and universities, we join
forces with our intelligence community partners, and we work
closely with the military to help safeguard our country's
secrets.
Cyber threats to our national security and the intersection
between cyber crime, terrorism, and counterintelligence is
becoming increasingly evident. Foreign adversaries and
competitors can now remotely observe, target, acquire, and
exploit our information to their advantage. Terrorists recruit,
train, plan, and execute attacks on the Internet. Spies now
sell intellectual property and state secrets to the highest
bidder. And hackers who used to shut down servers around the
world for bragging rights may now be linked to criminal or
terrorist organizations.
Today the FBI's cyber investigators focus on these threats,
and we partner with government and industry through our
sponsorship of a program called ``InfraGard,'' which is an
alliance of more than 23,000 individual and corporate members,
whose members help identify and prevent cyber attacks.
I am certainly mindful of this Committee's abiding interest
in the FBI's progress in building an intelligence program while
combating these threats, and the FBI has made a number of
changes in the last several years to enhance our capabilities
and to build a national security organization on par with our
law enforcement capabilities. Among them are:
Today, intelligence is woven throughout every FBI program
and every operation. Utilizing this intelligence, we have
successfully broken up terrorist plots across the country--
Portland, Oregon; Lackawanna, New York; Torrance, California;
Chicago; to the more recent Fort Dix and JFK plots. We have
increased and enhanced our working relationships with our
international partners, sharing critical intelligence to
identify terrorist networks and disrupt planned attacks.
We have doubled the number of intelligence analysts on
board and tripled the number of linguists. We have tripled the
number of Joint Terrorism Task Forces, going from 33 in
September of 2001 to over 100 now, combining the resources and
the expertise of the FBI, the intelligence community, the
military, and State, local, and tribal law enforcement.
Another important part of our FBI mission, quite clearly,
is our work against criminal elements in our communities, often
in task forces with our Federal, State, local, and tribal
partners.
Public corruption remains the FBI's top criminal
investigative priority. Corruption erodes public confidence and
undermines the strength of democracy. In the past 2 years
alone, we have convicted over 1,800 Federal, State, and local
officials for abusing their public trust.
Similarly, our work to protect the civil rights guaranteed
by our Constitution is a priority, which includes fighting
human trafficking as well as our focus on the Civil Rights Cold
Case Initiative.
Gangs and violent crime continue to be as much a concern
for the FBI as it is for the rest of the country. As you are
only too aware, gangs are no longer a big-city problem, and the
FBI's 141 Safe Streets/Violent Gang Task Forces across the
country leverage the knowledge of State and local police with
Federal resources and contemporary investigative techniques.
The FBI sponsors 52 additional Violent Crime and Interstate
Theft Task Forces as well as 16 Safe Trails Task Forces
targeting homicide, child sexual assault, rape, and drug
trafficking in Indian country.
The FBI combats transnational organized crime, in part by
linking the efforts of our Nation's 800,000 State and local
police officers with our international partners through the
FBI's 70-plus legal attache offices around the world. These
legal attache offices cover more than 200 countries, and today
these partnerships are absolutely essential when criminals and
their enterprises easily span international borders.
Because of the FBI's unique global reach, we have passed
over 35,000 pieces of intelligence related to terrorism and
other criminal threats, and most recently we have trained
more--over the last several years, I should say, we have
trained more than 865 foreign partners at our facility in
Quantico.
Finally, major white-collar crime, from corporate fraud to
fraud in the mortgage industry, clearly continues to be an
economic threat to the country. In recent years, the number of
FBI pending cases associated with subprime mortgage lending has
grown nearly 50 percent to over 1,200 cases. Roughly half of
these have losses of over $1 million, and several have losses
greater than $10 million.
Currently, the FBI partners with law enforcement and
regulatory agencies in 33 Mortgage Fraud Task Forces and
working groups, as well as an additional 19 Corporate and
Securities Fraud Task Forces, all in an effort to target this
threat. And we will continue our work to identify large-scale
industry insiders and criminal enterprises engaged in systemic
economic fraud.
Thank you, Mr. Chairman, for your comments with regard to
the personnel we have in the FBI and the hours they work and
the good work that they do. We recognize that, and for the past
100 years of the FBI's history, our greatest asset is our
people. We are building on that history with a comprehensive
restructuring of our approach to intelligence training for both
our professional intelligence analyst cadre as well as for new
FBI agents coming out of Quantico. We have and we will continue
to streamline our recruiting and hiring processes to attract
persons who have the critical skills needed for continued
success.
I am also very aware of your concerns that we always use
legal tools given the FBI fully, but also appropriately. For
example, after the Department of Justice IG review of the use
of national security letters, we have instituted new procedures
and internal oversight mechanisms to ensure that we as an
organization minimize the chance of future lapses.
Among the reforms we have instituted is the creation of a
new Office of Integrity and Compliance within the Bureau,
reporting to the Deputy Director. This office will identify and
mitigate in advance areas of potential risk. We will continue
our vigilance in this area.
As an aside, as you may know, the Inspector General will
soon release the audit of the FBI's use of national security
letters during the 2006 time period. As we discussed yesterday,
Mr. Chairman, and as the staff has, I believe, been briefed,
this report will identify issues similar to those in the report
issued last March. This is, of course, because it covers a time
period which pre-dates the reforms we now have in place.
I look forward to keeping the Committee up to date on our
progress and tell you we are committed to ensuring that we not
only get this right but maintain the vital trust of the
American people.
In closing, let me say that the FBI recognizes that it is a
national security service responsible not only for collecting,
analyzing, and disseminating intelligence, but most
particularly for taking timely action to neutralize threats to
this country, be it from a terrorist, a foreign spy, or a
criminal. And in doing so, we recognize that we must properly
balance civil liberties with public safety in our efforts, and
we will continually strive to do so.
Mr. Chairman, Senator Specter, members of the Committee, I
appreciate the opportunity to appear before you today and look
forward to answering your questions. Thank you for the
opportunity to give those remarks, Mr. Chairman, and I ask that
my longer statement be included in the record.
Chairman Leahy. Of course, it will be, as well as any
statements that any Senator wishes to have included in the
record.
[The prepared statement of Director Mueller appears as a
submission for the record.]
Chairman Leahy. Director Mueller, I want to reiterate again
that I appreciate your willingness to brief me and other
members. You have asked and some things we will not discuss in
this hearing because of a classified nature, but let me go into
a couple things.
We now know that the administration authorized and the CIA
used the ancient and notorious technique of waterboarding on
several detainees in 2002 and 2003. I have long maintained that
waterboarding is illegal and it is torture. That is the way it
has been defined in the past in this country, and it has been
understood that way for hundreds of years and that our embrace
of it threatens our values.
And as many of the military people have said in testimony
before this and other committees, it places our servicemen and
women at risk overseas. And the administration says that may
be, but it is necessary to obtain intelligence from key
suspects. With these high-level detainees, before they are
turned over to the CIA for harsh treatment, they are briefly
subject to interrogation by the FBI. They did not use these
techniques. They used the kind of rapport-building techniques
they have used with great success over the years.
Some FBI officials have told the press that their
techniques, the techniques approved by the FBI used in
interrogation for decades, were starting to yield results by
the time control of the interrogation was taken away from the
FBI and turned over to the CIA. These officials have also said
to the press that they wanted no part of the CIA's method, that
it violated their own rules and also believed it to be
inappropriate and less effective.
So, to the extent you can discuss this in open session, was
the FBI beginning to achieve positive results in its
interrogation of high-level detainees in 2002 using FBI methods
which do not include cruelty or coercion?
Mr. Mueller. I do believe talking about any particular case
in open session would be problematic. I will say that it has
been our policy throughout that our policy prohibits the use of
coercive techniques. And a determination was made that, to the
extent that other techniques would be used, we would not
participate in that type of interrogation.
Chairman Leahy. Do you believe that had the FBI been
allowed to continue interrogations, based on what they had
already seen, that they could have been successful in a number
of areas using the non-coercive techniques the FBI uses?
Mr. Mueller. Well, on the one hand, not getting into
details of any particular case, on the other hand, trying also
not to speculate, I would say that our techniques, the experts
that we have, I believe that our techniques are effective and
are sufficient and appropriate to our mission, and those
techniques are founded on the desire to develop a rapport and a
relationship.
Chairman Leahy. And you have found that to be successful in
criminal matters and other types of investigations?
Mr. Mueller. Yes.
Chairman Leahy. And you have a policy, as does the military
in the military handbooks, not to use coercive techniques like
waterboarding. Why do you have that policy?
Mr. Mueller. Well, there are a number of reasons that
probably contributed to the development of that policy years
ago. Generally, our questioning has been in the past done in
the United States, and the results of our questioning often end
up in a court where, as you and others who have been
prosecutors know, the question of voluntariness is at issue for
the admissibility of information you have. And, consequently,
the policy was established, I would imagine, given our
particular unique mission here and the operation under the
Constitution, the applicable statutes, and the Attorney General
guidelines.
It also is a result, I believe, of the analysis of our
Behavioral Science Unit as to effective use of particular
techniques where we believe that a rapport-building technique
is particularly effective.
Chairman Leahy. Again, without going into classified
matters we have discussed, not that there are--there are areas
where you have had some very significant and positive results
by using rapport building.
Mr. Mueller. Yes, sir. One example that recently appeared
in a piece on television was the use of those techniques with
the interrogation of Saddam Hussein after he was captured.
Chairman Leahy. And that was done over a fairly long period
of time that the agent did that in building up this level of
trust and rapport building. Is that correct?
Mr. Mueller. It was. And I will also say that credit goes
to our sister agency as well. Yes, we played a role, but so did
our sister agency, and they are also to be commended for their
participation in this particular effort.
Chairman Leahy. We saw, when people violated the rules in
Abu Ghraib and the photographs, the reaction around the world.
Is it safe to say that if they are going to show techniques
around the world, you would be far happier to have had the FBI
techniques shown than what was shown at Abu Ghraib?
Mr. Mueller. I think anybody that saw the videotapes of
what happened at Abu Ghraib was shocked, horrified,
tremendously upset that that could occur.
Chairman Leahy. Now, the FBI announced last month that it
awarded a $1 billion contract to Lockheed Martin to develop the
next-generation identification database. I mentioned that
earlier. That is a massive database of biometric information,
not only fingerprints but palm prints, perhaps facial features,
retina scans, other forms of identification for millions of
people.
On the one hand, we all agree the FBI has to stay at the
forefront of technology. The situation is a lot different than
when you and I began careers in law enforcement. But I also
worry about the checks and reporting requirements, the amount
of material that it will gain on Americans. We have not really
had hearings on this or set up a check and balance on this.
Can you give us assurances, tell us the steps you are
taking to guarantee that the privacy rights and liberties of
Americans will be protected if this massive database is
implemented?
Mr. Mueller. Let me, if I could, give a little bit of
background, Mr. Chairman. We have expanded our fingerprint
capabilities dramatically, particularly since September 11th,
and the system that we have for the comparison of fingerprints
now is way overtaxed. And so, inevitably, we would have to
build a next-generation identification database. And it is true
that this would include palm prints, iris scans, facial images,
and the like. But there are a couple of points perhaps to keep
in mind.
The first is it would not expand the categories of
individuals from whom fingerprints and biometric data may
already be collected--in other words, persons who were
convicted of crimes and the like. There are various categories
of persons for which we appropriately collect data, and it
would not expand the categories of individuals.
The second point is that we have published a system of
records notice, as required by the Privacy Act, to let the
public know what information is being stored, under what
authority that information is being collected, how long that
information will be used and retained, how it will be used, and
to whom it is being provided. And that gives the public,
Congress, an opportunity, quite obviously, to challenge any
collection, storage, or use of that data.
And, last, I would say we would be happy to brief members
of this Committee, staff of this Committee, at any time on this
contract, and the intent of the contract, the scope of the
contract, the funding of the contract, so that there is
transparency--
Chairman Leahy. Does that include the Privacy Impact
Assessment Report?
Mr. Mueller. Absolutely, and that will be public.
Chairman Leahy. Thank you. I will come back to this.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
I begin, Director Mueller, with the war on terrorism. The
inference was drawn by many that, had there been coordination
between the FBI and CIA, 9/11 might have been prevented.
Without getting into the speculation on that subject, there
have been considerable steps taken to change the posture of
homeland security with the new Department, the Director of
National Intelligence.
Do we now have a system of coordination among the
intelligence agencies in the United States which guarantees--
and that is a strong word--an exchange of information so that
we can do our utmost to stop another act of terrorism against
the homeland?
Mr. Mueller. Yes, sir, I do. I believe that is the case,
and let me address it, if I could, on three or four levels.
The ODNI, Office of Director of National Intelligence, was
established, I would say, in large part to assure that that
happens. And that role has been fully utilized by the Director
of National Intelligence, John Negroponte, and Mike McConnell.
Senator Specter. Director Mueller, could you limit your
answer to 2 minutes?
Mr. Mueller. Surely.
Senator Specter. Because there are so many other subjects I
want to move to.
Mr. Mueller. Let me just say there that we meet every 2
weeks, members of the intelligence community on that level. On
another level, you have the National Counterterrorism Center.
On a third level, you have the Joint Terrorism Task Forces
where there are agency representatives throughout the United
States.
And the last point I would make is that whenever we have a
transnational threat and attack, we are sitting shoulder to
shoulder with our counterparts in the intelligence agencies,
dealing with our counterparts in foreign intelligence and law
enforcement agencies by videoconference and the like on a 24-
hour basis.
On all those levels, there has been dramatic change since
September 11th.
Senator Specter. Director Mueller, moving over to the
current congressional activity on reauthorization of the
Foreign Intelligence Surveillance Act, as we discussed
yesterday at some length in a private meeting, there was
considerable opposition to a grant of retroactive immunity to
telephone companies. I believe the telephone companies have
been good citizens and ought to be protected.
But I believe that it can be accomplished by having the
amendment which I offered on the Senate floor--which was not
passed--which would substitute the Government for the telephone
companies as the party defendant. The Government would have the
same defenses, no more, no less, as the telephone companies.
Customarily, the government cannot be sued because of
governmental immunity. That would not be present. But the
Government would have the state secret defense. It is my view
that it is highly unlikely there are going to be verdicts in
any event, but I am very much opposed to seeing the courts
closed. It is my judgment that the congressional oversight has
been ineffective in dealing with the expansion of executive
authority, and I believe the executive authority needs to be
expanded. When my amendment failed, I supported the bill even
though it gave retroactive immunity that I did not like. Now we
have a stalemate. The bill has not been renewed. There are
contentions that our national security is jeopardized because
of the failure to reauthorize it.
Now, wouldn't it be a sensible accommodation to take the
bill with the substitution so that you retain the Government's
ability to get all the information it gets now from the
telephone companies, which still does not close the courts?
Mr. Mueller. As we discussed yesterday, sir, I would have
to--I disagree, respectfully. I do believe that the telephone
companies, the communications carriers, have been excellent
citizens, particularly since September 11th. In a day of e-
mail, cell phones, wire transfers, it is tremendously important
that we have the communications carriers as partners. And I do
believe that ongoing litigation is a disincentive for them to
continue to partner with the Federal Government in areas where
we need that information.
Senator Specter. A disincentive. Okay. But do you think
they would stop?
Mr. Mueller. I think it is a disincentive to that type of
cooperation that we need to be effective. Where you have
ongoing litigation--
Senator Specter. I understand the disincentive, but my
question is: Do you think they would stop?
Mr. Mueller. I think it would hamper our relationships,
yes. With ongoing litigation, with depositions, with hearings,
with interrogatories, with the potential of disclosing aspects
of the relationship in courtrooms around the country, I do
think it would hinder our relationships.
Senator Specter. Disincentive, hamper, hinder.
Mr. Mueller. Yes.
Senator Specter. But I do not hear you say that it would
stop.
Mr. Mueller. I mean, I am not going to say it is going to
stop, but--
Senator Specter. Good.
Mr. Mueller. But I do believe that delay is detrimental to
the safety of the country. Delay and a lack of clarity, a lack
of simplicity guiding our relationships, inhibits our ability
to get the information we need on a timely basis.
Senator Specter. I would move on to two other subjects
within my time limit. I asked you on December 6, 2006, in an
oversight hearing about the leak by the FBI on a search and
seizure which was made on the family's residents of Congressman
Curt Weldon immediately before the 2006 election, which
virtually certainly cost him that election.
When written answers were filed recently, we discovered
from the record on January 25th of this year that the
investigation was concluded because ``investigators were unable
to identify a suspect or substantially narrow the pool of
suspects. Accordingly, the investigation was closed on October
1, 2007.''
I just found out about it January 2008. Wouldn't it have
been a better practice to at least notify the Committee and me
that the investigation had been closed?
Mr. Mueller. Yes.
Senator Specter. Would you give me a briefing as to what
was done on the investigation?
Mr. Mueller. I would have to go back and look at what we
did. I would presume that I would be free to do so. I am not
sure to what extent there may be grand jury considerations, but
to the extent that I can, we would absolutely give you a
briefing as to what happened.
Senator Specter. Let me broach one other subject, if I may,
Mr. Chairman, in about 30 seconds, 45 seconds.
This issue about illegal aliens who committed crimes of
violence, sentenced in the United States, released from jail,
can be detained only for 180 days and then are put back on the
streets, thousands of them. We talked about this yesterday, but
I want to put it on the public record and encourage your
participation and the participation of others to see if we can
find a constitutional way consistent with due process to detain
these people.
We know that people who are in detention awaiting trial,
presumed to be innocent, may be detained on a showing of danger
to the community. We know that there are mental health cases
where a showing may be made as to danger to themselves or the
community, and they can be detained. We are investigating the
issue of sexual predators as to whether there may be detention
beyond the conclusion of a jail sentence.
Do you have any suggestion, Director Mueller, as to what we
can do about these thousands of violent criminals who are being
released onto our streets and not being deported because the
country of origin will not take them?
Mr. Mueller. The first opportunity I had to focus on this
is our discussion yesterday, and I quite obviously share your
concern and will do what I can to advance the discussion as to
how we may address what quite clearly is a problem that faces
us today and will face us for the foreseeable future.
Senator Specter. Thank you, Director Mueller.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Kohl.
Senator Kohl. Thank you, Mr. Chairman.
Director Mueller, last year, the President insisted on
significant cuts in the appropriations bills and threatened to
veto anything that did not meet his demand. This did result in
a 67-percent cut to the Byrne Justice Assistance Grant program.
As a result of the cuts imposed by the President, many States,
but particularly my own State, will receive just over $1
million--that is, Wisconsin. The State must now determine which
drug task forces and prevention programs to shut down entirely
and how many prosecutors to lay off. In Milwaukee, the district
attorney is now talking about reducing his staff by as much as
15 percent.
State and local law enforcement have been under tremendous
pressure in recent years as Federal law enforcement have
focused more on terrorism and Federal funding at the local
level has undergone big cuts. I believe that if something is
not done to alleviate this, it will perhaps devastate our State
and local efforts to combat crime. And yet the President's
budget again seeks significant cuts to the Byrne program.
Do you recognize the value of this program? And are you
concerned about the impact that these cuts will have on our
ability to combat crime in our communities all across the
country?
Mr. Mueller. As we have discussed before, Senator, I am a
great believer in task forces where you have Federal, State,
and local working together. I am a great believer in funding of
State and local law enforcement, particularly when it is
coupled with working together with the Federal Government.
I am aware that there are grants that are going to
Wisconsin. I believe it is in excess of $1 million to
Milwaukee, as well as, I believe, several hundred thousand to
Madison, Wisconsin, if I am not mistaken. But I am a great
believer, as I say, in funding of State and local law
enforcement so that it encourages participation on task forces
that brings together the various Federal as well as State and
local law enforcement entities.
I might also say, if I might, I know in Milwaukee itself
that there have been substantial issues. We participate with
State and local law enforcement there on the HIDTA, as I am
sure you are aware. And I have worked with Ed Flynn, the new
Chief of Police in Milwaukee, over the years, and I look
forward to working with him again. He is a tremendous law
enforcement officer.
Senator Kohl. Director Mueller, following on that theme,
State and local law enforcement has been looking for new ways
to improve the successful model of community policing. In
recent years, law enforcement agencies around the country have
been turning to intelligence-led policing as a way to improve
their efforts to combat violent crime.
As you know, intelligence-led policing seeks to improve
information sharing between law enforcement agencies and to
ensure that this information can assist law enforcement in
making the best possible decisions with respect to crime
control strategies, allocation of resources, and strategic
operations. In recent years, this administration has been
investing in intelligence-led policing at the State and local
level.
From your experience, does intelligence-led policing
enhance community policing and improve the effectiveness of law
enforcement operations?
Mr. Mueller. Yes, and it is a--which is why, again, I am a
strong supporter of task forces because I do believe what the
FBI can bring to the table are the databases, the capabilities
of analyzing intelligence that is derived from those who are
much more familiar with the seats, and then prioritize--or the
streets, I should say, and then prioritize the efforts of law
enforcement on all levels to address the crimes that are
bedeviling a particular community at a particular time.
Senator Kohl. So you support intelligence-led policing?
Mr. Mueller. Yes, sir.
Senator Kohl. Do you think we need to continue to invest in
it?
Mr. Mueller. Yes, sir, and for the Bureau, as I am wont to
say, as I did in my opening statement, it is that intelligence
now directs us to prioritize our resources, whatever the
program, whether it be public corruption or violent crime or
counterintelligence or counterterrorism.
Senator Kohl. Director Mueller, as you know, the
President's Intelligence Oversight Board has full investigative
powers and is responsible for conducting oversight of the
intelligence community and assessing whether its activities are
lawful. Last week, the President issued an Executive order
assigning a number of its responsibilities to the Director of
National Intelligence.
It seems to me that taking oversight away from an
independent board and assigning it to a member of the
President's own administration appears to be an effort to
thwart real oversight over the intelligence community's
activities. This seems to be a theme with this administration,
avoiding outside oversight and insisting that self-monitoring
is sufficient.
What is the reason for this shift from independent
oversight to internal oversight? And how can it be justified?
Mr. Mueller. I am not familiar with the details of that
shift, sir. I will say in my years in this position, there has
not been a lack of oversight in terms of the affairs of the
FBI, whether it be Congress or the Inspector General or the
GAO, a number of areas. And, again, I am not familiar with the
details of this shift, and so I really cannot comment on the
pluses or minuses of it, sir.
Senator Kohl. But you would agree that the intelligence
community does deserve oversight from beyond the
administration?
Mr. Mueller. I believe oversight is an important function
of Congress. It is an important function of various elements of
the Government.
Senator Kohl. Thank you so much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Kohl.
Senator Grassley.
Senator Grassley. Members of the Committee, the FBI is
stonewalling our congressional oversight efforts. I think this
Committee needs to demand answers and stand up for our right to
information from the executive branch. As we sit here today, it
is nearly a year since the last FBI oversight hearing. The
public cannot even obtain the official record from that
hearing. It has not been printed yet because the FBI has failed
to respond to more than half of the questions posed by all the
members of this Committee. This ought to be completely
unacceptable. The responses they did manage to provide do not
really answer questions.
Mr. Chairman, I have provided you and Senator Specter a
letter detailing a series of unresolved issues that I have been
working on. These issues are not partisan, and are not
ideological. They are basically about good government and
accountability. These issues range from the use of the FBI jet
to claims by FBI whistleblowers, like Michael German, Bassem
Youssef, Cecilia Woods, and others I will not go into. I am
frustrated with the FBI's refusal to provide us with documents
on the exigent letters. So, Mr. Chairman, I would like to get a
specific date from the Director and a commitment that he will
fully comply, and no more monkeying around.
Now I am ready to ask questions, but I would like to have
you think about that, Mr. Chairman.
Chairman Leahy. Well, I would note this, and this will not
be taken from your time. We will give extra time for this. But
I would note that Senator Grassley has been probably one of the
most vigorous people in oversight of either party. His
oversight has never been partisan. He has been just as tough on
Democratic administrations as Republican administrations.
I will work with him because I have found him to be very
open on these issues of oversight, and I am directing my staff
to work with your staff, Senator Grassley, to get these answers
and let us work at getting them. I think it is extremely
important. I think he has asked legitimate questions. They
should be answered.
Senator Grassley. Thank you very much.
I am going to go first, and I am going to have my staff
bring down some questions so you will have them, because I want
to ask a series of questions in order. Leading up to that--
Mr. Mueller. Senator, can I just interrupt for a second and
respond to the comments that you had at the outset?
Senator Grassley. Yes.
Mr. Mueller. Let me say, sir, that I do believe in
oversight, as I indicated in response to the last question.
When we get questions for the record, we draft the responses as
quickly as we can. We send them through the process, and we
hope to get them up here as fast as possible. Whenever you have
had an issue with the FBI, I have tried to address that issue
through the staff, and to the extent that I could not address
it through the staff, I would be very happy to sit down with
you to try to address it. And, in fact, I have in the past
reached out to you to discuss some of these issues.
Again, I reiterate, to the extent that there is a problem
with our responsiveness, I am very happy to sit down with you
and address those seriatim.
Senator Grassley. Well, it seems to me that there is a
problem when we do not have the record from the last hearing a
year ago being able to be printed because all the questions
have not been answered by all the members of the Committee, not
just Chuck Grassley. But let's go on to specific questions. I
would like to get to at least two. And I am going to have my
staff bring these down to you.
Immigration and Customs Enforcement and the FBI recently
announced a plan to postpone background checks for aliens
seeking legal status to live in the United States. As of last
April, there were nearly 340,000 name checks pending at the
FBI. Over half of those were older than 6 months. Thanks to
this FBI backlog, immigration officials are foregoing the name
checks. Rather than kicking the can down the road, the checks
need to be done now. Applications should be reviewed thoroughly
and completely, not just rubber stamped. It only takes one
error of national security to put our country at risk.
Just look at the FBI's experience with the former agent
Nada Prouty. She overstayed her visa, engaged in a sham
marriage to become a citizen, then pled guilty to unauthorized
access to Hezbollah case information. Congress had already
provided $20 million in December to take care of the backlog.
Then CIS had this foolish proposal that was announced without a
concrete plan to spend the money. So these four questions:
How do you plan to use the $20 million to reduce the
backlog? I want to see a written spending plan for the $20
million Congress has provided. When will we get a copy of that?
Are you at all concerned about national security being pushed
to the side for the sake of reducing backlog? Why would the FBI
agree to that policy?
Today, there are more than 600,000 people who have defied
orders to leave the United States. If a green card needs to be
revoked after a name check is finally done, how can you
possibly be sure that the person will be located and deported?
Mr. Mueller. I understand your concern and the concern of
others sitting on this Committee, and throughout Congress, with
regard to the necessity for clearing the name checks with the
Bureau for those who seek to be citizens of the United States.
By way of brief background, as I think you are aware, Senator,
in the wake of 2001, we were requested to do a much more
thorough background check on 2.7 million people, which has been
the source of the backlog today.
Now, we've worked our way through much of that, but we get,
in any given week, 79,000 background requests that require us
to go through our files. Upwards of 70 percent of those are
resolved within 30 to 60 days. With regard to the backlog, we
have been working to address that with DHS, and in particular
U.S. CIS, for the last year. We have hired, or will have hired
by the end of March with the monies that you have indicated,
upwards of 220 contractors to assist us in going through those.
We anticipate that the great bulk of the backlog will be
done by July of this year and we should complete it by January
of this year with the additional contractors that we have. In
the meantime, we have taken steps to revise the criteria so
that we could more swiftly go through this backlog, and we have
also prioritized the workload so that those who have been
delayed for an extensive period of time are the first ones out.
Finally, we have a Central Records complex that is being
built in Virginia that utilizes the modern technology, so that
once we are through this backlog in the next year, my hope and
expectation is that we will not face it again.
Senator Grassley. On another issue, last year I read into
the record some quotes from the transcript in a Florida
terrorism case where Michael German said the FBI dropped the
ball. In the transcript, a white supremacist and an Islamic
extremist talked about targeting Jewish reporters for
assassination and the mutual admiration of Hitler.
I was shocked by your answers to written questions for the
record where you suggested this was not enough to open a
terrorism investigation. You have got questions on this. Isn't
it true that a terrorism investigation was, in fact, opened on
these subjects based on that recording? Other than this
particular case, has there ever been a terrorism-related
investigation involving either of the two subjects in that
recording? If so, explain.
Has there ever been an investigation related to weapons
charges or violent crime involving either of the two subjects?
And what punishment did the FBI official who retaliated against
the FBI whistleblower, Michael German, receive? Isn't this case
the first time that any FBI official has ever been punished for
whistleblower retaliation?
Director Mueller. I'd have to get back to you, Senator, on
the specific questions you ask as to the particular case. With
regard to an individual, yes, an individual was punished. I
would be happy to provide that information to your staff in
terms of the extent of the punishment of that individual. As to
the question as to whether this is the first time that somebody
has been punished for retaliation, I can't tell you. I don't
believe that's the case.
Senator Grassley. Okay. Well, I'll wait for your answer in
writing.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you. Thank you very much, Senator
Grassley.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
Mr. Mueller, let me begin by saying I do think you do a
good job and I want you to know it's appreciated. I believe
other members of this Committee think so, too. I do differ with
you on some things. As you know, one of them is making violent
crime your eighth priority. I want you to know that, according
to your own statistics, violent crime rose by 4.1 percent
between 1905 and 1907. Murder rates jumped almost 5 percent
during the first half of 1907. Despite this trend, the number
of FBI agents assigned to investigate criminal cases has
dropped steadily.
Since September 11, 2001, the FBI has failed to replace
nearly 2,400 agents that have been transferred to counter-
terrorism squads. Many of the agents had been assigned to
violent crime and gang squads and have not been replaced. The
number of total criminal cases investigated by the FBI has also
steadily declined. I can give you those statistics; I do not
want to take the time to do it.
I am really concerned about this. In 2007, October, you
told the International Association of Chiefs of Police that
``We're realizing that national security is as much about
reducing the number of homicides on our streets as it is about
reducing the threat of terrorism.'' I don't believe you can do
this if violent crime is No. 8 on your priority list.
I must tell you, what's happening in the cities--and I'll
speak for California, and I'm going to go to your office on
Monday and meet with some of your people in San Francisco, but
it's a big problem. It's an increasing problem. With the cuts
local law enforcement is taking, I really worry about the
streets of America and what's happening. Have you at all
reconsidered making violent crime your eighth priority?
Director Mueller. Senator, as we have discussed--
Senator Feinstein. Yes. Three times now we've discussed
this.
Director Mueller. I know. The national security priorities
which come first are counter-terrorism, counterintelligence,
and cyber. On the criminal side, it is public corruption, it is
civil rights, and then transnational organized criminal groups,
which are gangs, which is where we address primarily the
violent crime. Now, if you look at where we are and what we had
to do in the wake of September 11th, I had to shift 2,000
agents--you're absolutely right, 2,000 agents--from the
criminal side of the house over to the national security side
of the house to address counter-terrorism and
counterintelligence. Twelve hundred of those 2,000 went to
counter-terrorism, 400 went to counterintelligence, and 400
went to intelligence.
Now, I look at what we are not doing as a result of that
shift. We're not doing 800 agents that were doing white-collar
crime, white-collar crime cases where the loss to the bank or
the institution was less than $50,000, are not being done. That
is almost 10,000 cases. Eight hundred agents. We're not doing
that. Nine hundred agents were doing drug cases. They are no
longer doing drug cases. We had approximately 140 additional
agents who were doing bank robberies who are no longer doing
bank robberies.
Senator Feinstein. So let me stop--
Director Mueller. But in the meantime, I have tried to keep
the agents doing violent crime and enhance it when I can.
Senator Feinstein. See, this is the problem. I mean, this
is the administration. You take 2,400 agents, you put them
somewhere else, you don't replace them. What do I say, and
others say, to chiefs of police when they come here and they
say they are unable to replace the FBI's investigative gap?
We've got a budget that has proposed a $3.2 billion reduction
in Federal assistance to State and local law enforcement in
2008, so it's going to get hit there. I mean, we have to wake
up and understand that we also have a responsibility to protect
the streets of America, and we're not doing that, Mr. Mueller.
Director Mueller. We are utilizing our resources as
effectively and efficiently as we can, and prioritizing to try
to address it. Needless to say, additional resources would
always be welcomed. But I will tell you, if you sit down and
you talk to Bill Bradley, you talk to the State and local law
enforcement in southern California or northern California, I
think they would express appreciation for the efforts we are
making. I am sure that they would say that we need more
resources.
Senator Feinstein. Let me ask you something. There is an
article which says that you requested John Ashcroft and Alberto
Gonzales to give you additional funding and agents to handle
traditional criminal investigations. Is that correct?
Director Mueller. I hesitate to get into the discussions
with them.
Senator Feinstein. Yes or no?
Director Mueller. I have asked for additional resources
throughout the years, yes.
Senator Feinstein. Okay. Have you asked Attorney General
Mukasey for additional resources?
Director Mueller. In the course of the budget process, yes.
Every Attorney General, I've asked. The Attorney General, OMB,
and Congress. Yes. Those are the steps one goes through.
Senator Feinstein. Now, the Seattle Post Intelligencer
recently quotes a recently retired high-ranking FBI official as
saying that the Bush administration is forcing the FBI to
cannibalize its traditional crime-fighting units in the name of
fighting terrorism. Would you agree with this characterization?
Director Mueller. I would say we have had to take resources
from our criminal programs to address national security, yes.
And I think you would see that with regard to the Department of
Justice's budget as well where our--the money spent on national
security for the FBI is eating up money in the Department of
Justice that could go to our criminal programs, but the
criminal programs of DEA, ATF, as well as prosecutors. Yes.
Senator Feinstein. Well, I thank you for that. I thank you
for being honest, because I think we're really opening this
Nation to great harm on our streets. You can't take 2,400
agents, transfer them, and not replace them. So, thank you very
much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Feinstein.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Director Mueller, I'll add my best wishes to all of the
people who work with you, and suggest that while this is
oversight and there can sometimes be tough questions, I'm sure
that every one of us appreciate your leadership and the job
that your folks do.
Let me ask you a question about a letter that you and
eleven other prominent members of the law enforcement and
intelligence communities sent to Senate Leaders Reid and
McConnell recently--January 23rd, actually--expressing concerns
about the Federal media shield legislation, the so-called Free
Flow of Information Act.
In that letter you suggested that those bills ``will
undermine our ability to protect intelligence sources and
methods and could seriously impede national security
investigations.'' The letter also said, ``The high burden
placed on the government by these bills will make it difficult,
if not impossible, to investigate harms to the national
security and only encourage others to illegally disclose the
Nation's sensitive secrets.
Could you comment on whether you believe that legislation
like this is really necessary at this time and what impact you
believe that such a law would have on our ability to protect
the Nation from terrorists and other threats to our national
security?
Director Mueller. I do believe, having spent time in the
Department of Justice reviewing these particular issues, and
that is the service of subpoenas upon the media and what
actions to take, as well as looking at it from the perspective
of an investigator in the Bureau, that the legislation is not
necessary. Because of the relatively tight controls--I would
say the tight controls--that you have at Justice and before you
ever issue a subpoena to a member of the media.
I would also say, I think a follow-up letter that was sent
from the Department of Justice in which it lists the numbers of
times that subpoenas have been approved by the Department of
Justice, they are minuscule, very, very few, and only in
situations where we believed the information was necessary.
The process now on the Federal level, which is when a
subpoena or other order is opposed, it goes to a judge who does
an appropriate balancing of the adverse impact on the national
security or otherwise compared to the adverse impact on the
exercise of the First Amendment by the members of the media. I
do believe that that balancing, in the hands of a judge who
looks at the specifics of a particular case, is appropriate to
resolve those issues.
Senator Kyl. I appreciate that.
Let me now go to a matter that Senator Feinstein alluded
to, and also to some extent Senator Grassley talked about. That
is the shortage of personnel to do jobs that Congress imposes
on you and that otherwise exists. I don't think you have to
apologize at all for asking for, in your budget submissions,
more than any administration ultimately provides.
Your job is to try to figure out what you need to do your
job, and if for other reasons and prioritization the
administration doesn't choose to make the full extent of those
requests, you've nevertheless done your job. It's important for
us to know what you think. So where there is a need for
additional resources, I think it's important for you to let us
know that, even though there is another process through which
you go and you're part of the administration.
This has to do, as a follow-up with what Senator Grassley
talked about, and it has to do with this backlog. I mean, there
are a lot of different backlogs, but the one that caught my eye
recently was an article in the Washington Post reporting that
44 percent of the background checks on pending immigrants have
waited more than 6 months, and according to the article--and
I'd like to ask if you know whether this is true or not--to
cope with that backlog the Department of Homeland Security
intends to announce a new policy granting lawful permanent
residence to tens of thousands of foreign nationals who have
not yet cleared the FBI's National Name Check program.
Is that true? Are there additional resources you need to
eliminate, as you said, the bulk of--I think we're talking
about the same backlog, by July of this year, the bulk of it.
And whether you either have requested additional resources or
you need additional resources to accomplish that goal.
Director Mueller. In the past we had requested additional
resources, some we have gotten, some we have not gotten. But we
also have received funding from the Department of Homeland
Security that has enabled us to build up, as I said earlier, to
a staff of almost 220 to work through this backlog.
To a certain extent, the delay is bringing the persons on
board, training the persons to do the searches, as well as
understanding that our files are spread throughout the United
States, or paper files spread throughout the United States, as
well as across the world. So we are doing everything we can. At
this point I believe the money is sufficient. I would come back
to you, or I'd also go back to Mike Chertoff and say it's
insufficient if we were not on a path to get this done as
swiftly as we can.
Senator Kyl. But do I understand that. And you mentioned
something in your answer to Senator Grassley's question, that
some of the criteria will be revised, which was kind of a red
flag for me.
Director Mueller. Yes. Yes.
Senator Kyl. Can you comment on the news report that DHS
will announce a new policy granting lawful permanent residence
to folks who have not yet cleared the FBI's clearance program?
Director Mueller. I believe that they are doing that with
the expectation that if it does not clear, they would revoke
that particular status. I will tell you that the percentage of
finding derogatory information in a background check is
approximately 1 percent, and so you have a 1-percent risk that,
if you are granting this to a person, that there will be
derogatory information of some sort found in one of our files
that would require that person's citizenship to be revoked,
which is harder.
Senator Kyl. Indeed, a harder task. Well, one doesn't like
to see criteria revised because there's insufficient personnel
to do the job in the first place.
There are other important background checks that you all do
where there are also long waiting lines. Just in the last 10
seconds, I would ask your folks to just send us up a little
memo about all of the different kinds of background checks you
do, what the status of the backlog is, and what kind of
resources you would need to clear up those backlogs within
reasonable periods of time. If you need some help in having us
identify what I'm talking about, I'm happy to do it. But you
all know the background checks that you have to conduct, and
perhaps it would be best if that came from you.
Director Mueller. We'd be happy to do that for you.
Senator Kyl. Thank you very much.
Director Mueller. I would give you just one example, is
fingerprint checks. We establish--our system, I believe, is
supposed to handle something like 68,000 fingerprint checks a
day, and we're up to somewhere around 150,000 fingerprint
checks a day.
Senator Kyl. A day?
Director Mueller. A day. A day. At least 150,000. It is
designed to do something like 68,000. And consequently, in the
wake of September 11th there have been substantial additional
demands placed upon us and we are moving as quickly as possible
to develop the capacity to respond to those demands.
Senator Kyl. Again, those are the kinds of things I think
Congress will be very willing to respond to if we understood
that there was a need for additional resources. We need to hear
that from you. I appreciate that very much.
Director Mueller. Yes, sir.
Senator Kyl. Thank you.
Chairman Leahy. Thank you, Senator Kyl.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. Thank you, Mr.
Director, for being here today and for all your good work over
the years. Also, thanks to the brave men and women who work at
the FBI.
The FBI's budget proposal last year included a request for
$12 million and 59 staff to open a new National Security
Analysis Center, known as NSAC. According to the FBI's
proposal, this new center would engage in pattern-based data
mining, which, in the counter-terrorism context, is the least-
proven and most intrusive version of data mining, the type of
data mining that Americans have been most concerned about. It
would draw on potentially billions of records.
Representatives Brad Miller and Jim Sensenbrenner were so
concerned about the proposal, that they asked the GAO to look
at it. In their request they said, ``The expanded and sweeping
scope of the NSAC bears a striking resemblance to the Total
Information Awareness Program which Congress terminated funding
for in 2003 because of privacy and other concerns.''
Now, Mr. Director, as you know, Representative
Sensenbrenner and I often disagree, but he is right on this
one: there is a striking resemblance. Is the FBI continuing
Total Information Awareness under another name?
Director Mueller. No. It is not a new database. It will not
create new systems. It is a better understanding of information
that we are entitled and authorized to have. Consequently, I do
not consider it to be, and I would be surprised if we used in
the initiative, the word ``data mining''. It is not a data
mining initiative in the sense that we would be looking at
broad categories of information that we otherwise would not be
entitled to have.
I would be happy to provide you a briefing on it so that
you can ask the questions with regard to specifics of what we
are doing.
Senator Feingold. Okay.
Director Mueller. But I am comfortable and confident that,
as it will be looked at by our privacy personnel within the
Department, but also outside, that it'll pass muster and pass
scrutiny. It is not a data mining initiative.
Senator Feingold. I do appreciate those assurances. I look
forward to the opportunity to get that briefing. But let me
just follow up by pointing out that your own documents say that
the FBI will use ``predictive models and patterns of behavior
to identify sleeper cells''. Now, surely you can understand why
Americans might be concerned that the FBI is planning to look
at billions of records to try to identify patterns of
suspicious behavior.
Experts agree that this type of data mining is not
appropriate in the counter-terrorism context. A chief scientist
with IBM has argued that it will ``waste taxpayers' dollars and
needlessly infringe on privacy and civil liberties''. So I
guess I'd like you to tell me what steps you've taken to test
the effectiveness of this technology and to protect Americans'
privacy.
Director Mueller. I am not certain I am familiar with the
citations that you gave me and whether they were specific to
this particular program, understanding this program. I'd be
surprised if they were. But I'd be happy to get back to you in
the context of the citations you just gave me and explain to
you what this program does.
Senator Feingold. Okay. We will follow up. You've always
been responsive on these kinds of follow-ups, so I look forward
to it.
Now, under the Federal Agency Data Mining Reporting Act,
which became law last summer, all data mining programs for
counter-terrorism or criminal purposes have to be reported to
Congress. The first set of reports were due in January.
Mr. Director, these reports are critical to congressional
oversight, but we have yet to receive a report from the FBI or
the Justice Department. When can we expect that report, and
will you make sure it includes detailed information about the
new National Security Analysis Center?
Director Mueller. I will check where we are on the report.
I'll have to get back to you on that. But as I said, we will
provide you the information you need on the NSAC.
Senator Feingold. And the time for when the reports will be
received?
Director Mueller. Yes.
Senator Feingold. Okay.
Yesterday, I met with police chiefs from Wisconsin. Since
the beginning of the year, I've held some 30 town meetings
across the State in truly incredible weather, and the number of
people that have come to me to talk about Byrne grants and the
drug problem, which I know Senator Kohl already talked about,
is really astounding.
They confirmed that significant progress has been made in
combatting methamphetamine abuse, which I was very pleased to
hear, but they also cautioned that heroin is coming into the
State and in many of these places taking the place of meth,
including the more rural northern and western parts of the
State. Are you seeing a similar replacement trend in other
States, an influx of heroin replacing meth as meth use is
reduced? If so, what is the FBI doing to address this?
Director Mueller. I had not heard that. I would have to go
back and check on that. That had not come to my attention. In
the wake of September 11th, we had to move 900 agents from drug
programs over to national security. Before I made that move, I
did sit down with the IACP and various representatives of State
and local law enforcement, as well as DEA, and discussed it
with others at DOJ, so some of the slack could have been picked
up. But we are at this juncture, as a result of what happened
September 11th, not participating in addressing the drug
problem in this country as we were prior to September 11th. We
do it in the context of addressing gangs and violent crime.
Senator Feingold. A candid response. It's concerning, but I
just thought I'd alert you to what the folks in Wisconsin are
telling me is happening.
Director Mueller. Yes, sir.
Senator Feingold. Government officials, as well as
declassified documents issued in response to a FOIA request
have recently confirmed that both the CIA and the Pentagon have
issued national security letters to obtain financial records
from financial institutions here in the United States. As I'm
sure you are well aware, an executive order that has been in
place since 1981 places primary responsibility for domestic
intelligence gathering with the FBI and limits the ability of
other intelligence agencies to spy domestically, and that is
for good reason.
In your view, what role should the CIA and military
intelligence agencies play with respect to domestic
intelligence-gathering operations? If other intelligence
agencies need information on Americans, aren't they usually
supposed to ask for follow-up from the FBI, which would have
the expertise and appropriate safeguards in place to conduct
domestic operations?
Director Mueller. I would agree that usually that is the
case. In most occasions, it does. I'm not certain of the
authority which accords either the Agency or DoD to issue
national security letters. I would imagine--and again, I'm not
that familiar with it--it relates to perhaps the involvement of
their own people in illegal activities, and so it's probably a
very narrow basis for the use of national security letters. I
know that in almost all cases we are brought in early by NCIS
or other agencies when there is a necessity for following up on
a lengthy criminal case. I'd have to get back to you on that.
Senator Feingold. All right. Please do. Thank you for your
answers, Mr. Director.
Chairman Leahy. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Mr. Director, thanks to you. You've been there quite a
while and I think you've done a terrific job under very
difficult circumstances in a very difficult time. As you know,
I feel that the FISA Act is probably the most important Act of
this particular Congress. I'm very concerned about the fact
that it's being held up and that the retroactive immunity
provision seems to be the major hold-up in this matter.
Now, it is true that we can do surveillance up to the time
that the Act expired, but what do we do with regard to doing
surveillance now of foreign terrorists?
Director Mueller. Well, Senator, I do believe it's
important to pass the FISA statute that was originally passed
last August, for a couple of reasons. First of all, we need
clarity. We need agility to utilize the technological
information that is flowing across our borders in a variety of
different ways. To the extent that we do not have the clarity,
to the extent we do not have the simplicity, we are hampered,
hindered, in terms of being able to get the information we need
as quickly as possible.
I also, in response to a question from Senator Specter,
indicated that I do believe we need the assistance, the
partnership of the communications carriers in order for us to
be effective and efficient. They are most knowledgeable on the
information that are kept in their databases and how to utilize
the software that they have developed themselves in order to be
responsive to our, whether it be court-ordered or national
security letter, requests. We need that cooperation and
partnership in order to get the information we need swiftly so
we can act on it.
Senator Hatch. Now, in that regard there are some 40
lawsuits, civil lawsuits, that have been filed against telecom
companies that are classified--or at least the companies are
classified--asking for hundreds of billions of dollars. Now,
put yourself in the shoes of the general counsel of any of
these telecom companies, assuming we know who they are. The
government comes to them and asks for unrestricted help to help
protect this country. You're the general counsel, and they
naturally come to you. What's going to be your response?
Director Mueller. Well, I think that it's not just the
general counsel, it's the CEO and the Board of Directors that
are concerned--
Senator Hatch. Well, not always. The Board of Directors
sometimes isn't even told about it. Certainly the general
counsel is consulted, the CEO, generally. But, I mean, aren't
you going to say, hey, I want some protection here?
Director Mueller. Yes. Also, I think they'd be concerned
about publicity, the costs that would be incurred in litigating
it in terms of depositions, interrogatories.
Senator Hatch. Right. You're concerned about third-party
discovery.
Director Mueller. Yes.
Senator Hatch. You're concerned about interrogatories,
depositions, document requests, leaking of trade secrets,
confidential e-mails and correspondence, possible disclosure of
informant information. All of these, right?
Director Mueller. That's a concern, sir.
Senator Hatch. And those are likely to be disclosed if we
allow these lawsuits to go forward when these companies,
patriotically, volunteer to be able to help here.
Director Mueller. I think that would be a concern to
general counsel.
Senator Hatch. Is that a fair appraisal?
Director Mueller. I think that's a fair appraisal.
Senator Hatch. I do, too. The fact of the matter is, if I
was general counsel of these companies I would not want to put
my foreign workers at risk if the company is an international
company, and most of them are, probably. Right?
Director Mueller. In that, I'd have to know more about the
scenario to say yes. I can understand that you would not want
to put your workers at risk. You would not want to put the
corporate name at risk, and you'd be concerned about the
amounts of money you'd be spending in the litigation.
Senator Hatch. Well, and aren't you also worried about the
Agency or the Intelligence Committee's sources and methods
being disclosed?
Director Mueller. That's an issue, yes.
Senator Hatch. It's a big issue, isn't it?
Director Mueller. Yes.
Senator Hatch. In addition, wouldn't any verdict in the
case reveal whether the government had a particular and
specific relationship with the telecom and the specific details
as well?
Director Mueller. It would unless there were precautions
taken. I'm not certain what precautions you could take in that
circumstances.
Senator Hatch. Fine.
Do you know of any of these companies that acted improperly
or did they act in response to a request from the highest
levels of our government?
Director Mueller. I have not seen an instance where a
company acted irresponsibly. In the wake of September 11th,
communications carriers, within the law, tried to be as helpful
as they could be. They were responsive to legitimate court
orders and requests from the government.
Senator Hatch. Now, regarding the idea of government
substitution relating to lawsuits against telecoms, let me just
be absolutely clear. This Committee rejected that idea 13:5 in
a bipartisan vote, and the entire Senate rejected that idea
with a 68:30 bipartisan vote. That doesn't get us away from all
of these leaks and disclosures that we've been talking about,
does it?
Director Mueller. No, sir. As we indicated before with
Senator Specter, we agreed to disagree on that issue.
Senator Hatch. Okay.
Now, our national security is greatly dependent on
cooperation of telecom providers. We can't do this by
ourselves. The Intelligence Committee just can't do it by
itself. Yet, many foreign governments are in quite the opposite
situation, one which gives them an advantage in certain
electronic interceptions. Many foreign telecoms are run by the
respective host government, isn't that true?
Director Mueller. Yes, sir.
Senator Hatch. Many others have government officials with
controlling authority over them. Isn't that true?
Director Mueller. I'm less certain about that.
Senator Hatch. Well, we don't have that here. Those
countries don't have to worry about telecom cooperation. They
can simply force the telecoms to cooperate. Is that correct?
Director Mueller. That is true in certain countries where
the telecommunications industries are basically nationalized
and are a part of the government.
Senator Hatch. Well, from a law enforcement perspective can
you elaborate on law enforcement's dependence on the voluntary
cooperation of the telecom providers?
Director Mueller. As I tried to indicate, we need the
active partnership of the telecommunications carriers in this
day and age, and more perhaps than we have in the past, because
of the advent of the various means and mechanisms of
communicating, whether it be cell phones or e-mail in addition
to regular telephones. Where you have a profusion of carriers
in a variety of fora, it is tremendously important that we work
together to develop the solutions that will provide us the
information we need pursuant to appropriate legal process. We
have a number of voice-over IP, you have a number of other
technological advances that are propounded by the companies
that are growing day in and day out.
In order to keep ahead with advanced technology and be
able--and I always underline it, with appropriate legal
authority--to get that information, we need the partnership of
those that are putting together these new means of
communications and understand how they are doing it and how we
can best direct our inquiries to get the information we need to
protect the American public.
Chairman Leahy. Senator Hatch wants to ask one more
question and I'll allow that. But I want to be very careful.
We're skirting awfully closely to some highly classified
material. I know neither Senator Hatch, the Director, or
anybody else wants to go into that. I would just put that
cautionary note.
Director Mueller. Thank you, sir.
Senator Hatch. I'm trying to be very careful with my
questions, having been read into these various situations.
Now, there have been claims that the emergency authority in
FISA allows for ``instantaneous monitoring of terrorists
overseas''. However, this claim falls flat when people
understand that it takes a great deal of time for the Attorney
General or Director of National Intelligence to personally
approve the request from the field.
Can you explain how local agents do not have blanket
authority to begin emergency surveillance under FISA?
Director Mueller. There's a very extensive process which
requires coming through Headquarters at FBI, then going to
Department of Justice, and then, depending on what path is
chosen, the Foreign Intelligence Surveillance Court.
Senator Hatch. I thank my Chairman for providing me the
time.
Chairman Leahy. I'd just note, the question of liability of
the telephone companies, if the telephone company gets a
warrant from the FISA court then there's no question of
liability is there?
Director Mueller. No.
Chairman Leahy. Thank you.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Mueller, and welcome.
Director Mueller. Sir.
Senator Kennedy. I'd like to give some focus and attention
this whole issue on the naturalization of many applicants here
that are for governmental agencies. I think in the time that
I've been in the Senate and the Chairman of the Immigration
Committee, one of the most moving conversations that I've had
in talking to individuals who have achieved their citizenship,
they talk about the two great moments of their life. That is
when they receive and are sworn in as citizens, and also the
first time they go to vote. Those are two very special moments.
Dr. Martin Luther King said, ``The most important civil right
of all is the right to vote.''
Now, you know what the backlog is on those individuals that
are presently in line for naturalization?
Director Mueller. Yes.
Senator Kennedy. Do you want to tell us what it is?
Director Mueller. We've got a backlog, I believe, of about
300,000.
Senator Kennedy. Now, DHS, last fall, it was 1.4 million,
and they have cleared up about 350,000. As I understand it,
it's about a million at the present time. That's my information
on that.
Director Mueller. That may be DHS figures--
Senator Kennedy. DHS figures.
Director Mueller [continuing]. On immigration as opposed to
the Name Check backlog for which we are responsible, which I do
believe it's in that range.
Senator Kennedy. We have seen over the past--and I'm just
showing this chart--whenever we've had a fee increase, going
over the history, for naturalization, the numbers of applicants
have gone up. Going back to 1998, the numbers increased
sharply. In 2002, it increased sharply. April, 2004, sharply.
2008, the numbers have gone up sharply. The reasons for that
are multiple.
But one of the most powerful is the desire of individuals
to be able to vote. We had an important debate on the
immigration issues. There were groups that were out there
trying to urge people to become citizens. But it's the desire
for the right to vote. So we know, predictable, because we have
seen the increase in the fees that have been requested by the
agencies, and the total numbers for those that wanted to become
citizens have gone up, and gone up dramatically.
So at the present time there's, as I understand it,
approximately a million that are waiting in line to become
citizens, and we have an election that's coming up. We have an
election that's coming up. We know, as you just mentioned and
commented earlier, that you are prepared, one, that you took
note that there's very little derogatory information on those
that are even applying for a green card. It's my understanding,
historically, that that's a similar pattern to those that are
going in for citizenship.
Given the importance and the significance of the right to
vote and given the fact that these individuals are all willing
to pay the increased fees that are necessary, the resources
that are necessary, why not give the assurance that these
individuals are going to be cleared so that they will be able
to participate and vote in the election? If we're not going to
be able to do it, why not extend to them the same kinds of
rights that we're giving to individuals with the green cards?
Director Mueller. Well, I think I can go so far as to say,
we will do--we are doing what we can to reduce our backlog of
that 300--I've been told it's about 346,000--as soon as
possible. And as I think I indicated before, by July of this
year we will expect to have gone through a substantial
proportion of that backlog, given the additional resources that
have been provided over the last 6 months by the U.S. CIS,
which has enabled us to bring on, as of March of this year, 220
cleared contractors.
We have prioritized, in the sense that those who have been
waiting in line longest are given the first priority now, and
as I think I indicated, by July of this year we will have
hopefully eliminated all of those who have been waiting in line
for more than 2 to 3 years. It will take, given the number of
contractors we have, until January of last year to be totally
up to date.
From our perspective, I do believe that we have to go
through the process. We discuss with our counterparts at DHS
periodically how we can improve it, whether it be by additional
personnel or changing the criterion, but I think we're on the
appropriate path to reduce that backlog. I do not see how we
could do it any sooner than we are projecting. I know we are
going to provide a briefing to your staff--I believe it's on
Thursday--on this. Perhaps out of that briefing, we'll have
other ideas that we can adopt.
Senator Kennedy. Well, your report, in terms of seeing a
reduction of this by July, so what is basically the road block,
then? Is that over the Department of Homeland Security?
Director Mueller. Right now it is with us. We've brought
the contractors on. They're being trained. It's the numbers. As
I think I indicated, we get 79,000 name check requests each
week and it's bringing the additional personnel on. Then the
constraints are, we've got paper records throughout the
country. A determination was made early on, in the wake of
September 11th, is you didn't just look to determine whether a
file was opened under a particular name, but we're required to
go and search our files where that name shows up, even if that
person shows up as a witness or something else.
Senator Kennedy. Well, as you well know, up to probably 3
or 4 months ago, even the clearance time was--the average
waiting time was 7 months. That was the average time. Now
you've had a blip because you had the increase in the cost. We
have the election going up. But it was 7 months, as I
understand it.
So with the issue, the question is, there's increased
numbers, but whether those individuals are going to have the
right and the opportunity to vote in the fall. Obviously, in
the fall, for the general election, they'll have to have a 30-
day, at least, registration period, so it means that it has to
be finished by early fall. So what assurances can you give to
us--or can you--about those that have been in that particular
backlog that have applied at the start of this year? Will their
applications be considered?
Director Mueller. Well, we are prioritizing those
applications that have been pending because they have some
mention in our files someplace. We are hoping to be through the
vast majority of that by July. The other thing I can say is, if
you apply this week to be a citizen, you have a 70 percent
chance that, within 30 to 60 days, it'll be approved by us. So
the vast majority of persons that apply to be citizens, we can
resolve relatively quickly.
It's those that we have a problem with that we have
prioritized, we've brought on new contractors, and which we
hope to resolve substantially by July, which I do believe would
be, from our perspective--we then pass it back to DHS--but from
our perspective would put it back in the hands of DHS well in
anticipation of the election.
Senator Kennedy. Okay.
Thank you, Mr. Chairman.
Chairman Leahy. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman. And thank you,
Mr. Director, for being here once again.
I have two areas of questions. The first deals with
interrogation methods and waterboarding. As you know, there's
been an intense debate in the Senate and elsewhere about the
propriety and effectiveness of certain interrogation techniques
which many believe to be torture. Now, last December, the
Washington Post reported this debate has also ranged within our
most important law enforcement and intelligence agencies, and
the L.A. Times made a similar report a few months earlier.
Specifically, the Post revealed the following, that at
least one high-level suspect--and that was Abu Zubayda--
``credibility dropped as the CIA subjected him to a simulated
drowning technique known as waterboarding'', that he ``provided
interrogators with increasingly dubious information as the
CIA's harsh treatment intensified in late 2002,'' that ``a rift
swiftly developed between the FBI agents who were largely
pleased with the progress of the questioning and CIA
officers'', that ``FBI Director Robert S. Mueller, III,'' I
think you've heard of him, ``eventually ordered the FBI team to
withdraw from the interrogation''. That was all in the
Washington Post. Those are all quotes. The L.A. Times reported
that several FBI agents ``had begun complaining that the CIA-
run interrogation program amounted to torture.''
So that's very disturbing stuff, Director, and I want to
ask you these questions: one, what is your view of the
effectiveness, legality, and appropriation of interrogation
techniques like water-
boarding? And, second, was there a rift between the FBI and CIA
as described in the Washington Post?
Director Mueller. As to the first question, I can tell you
that it's been the policy of the FBI over the years not to use
any form of coercion in the questioning of individuals. That
policy was reaffirmed in the wake of September 11th and the
direction was given not to participate in interrogations where
other techniques were being used.
Senator Schumer. Right.
Director Mueller. As to the--
Senator Schumer. I just want to know, any of the quotes I
gave, are any of them false information?
Director Mueller. Well, that would be very difficult for me
to give a blanket answer because, as least to some of the
quotes that you are seeking an answer for, is classified and I
could not give in this forum, or respond.
Senator Schumer. Okay.
Well, let me ask you, was there a rift--
Chairman Leahy. If I could interject, Senator Schumer.
Senator Schumer. Please.
Chairman Leahy. You had to be out of the room, but we had
gone through all this earlier--
Senator Schumer. I see.
Chairman Leahy [continuing]. And that this specific concern
on the area of classification. Certainly if there are other
areas--
Senator Schumer. Okay.
Chairman Leahy. And certainly feel free to do this some
more. But if we're going in--if we have a classified area, we
can always arrange a time to go into a classified session.
Senator Schumer. You bet. Which I'd like to do. But this
will not get into classified.
Was there a rift between the FBI and CIA along the lines
described here?
Director Mueller. Again, if you're talking about particular
instances, I really feel constrained not to answer in this open
forum.
Senator Schumer. Well, I don't see how that would violate
any, just saying there's a rift. I'm not asking you to describe
the details.
Director Mueller. There periodically have been
disagreements, generally, without any specific--referring to
any specific incident.
Senator Schumer. Okay.
Director Mueller. Yes, there have been disagreements as to
handling of particular witnesses over a period--
Senator Schumer. And you don't want to answer the question,
did you order the FBI team to withdraw from the interrogation
of Abu Zubayda?
Director Mueller. Again, I cannot get into that which may--
Senator Schumer. Okay.
Let's go to the next area, which deals with voter fraud.
Director Mueller. Yes, sir.
Senator Schumer. Attorney General Ashcroft announced a new
initiative for ballot access and ballot integrity in 2001. The
last time you were before this Committee about a year ago, I
asked you questions about the issue of prosecutions of election
fraud. You might remember at the time, there were significant
allegations, never refuted in any satisfactory way, that at
least two U.S. Attorneys had been summarily fired because they
didn't do the political heavy lifting of pursuing phantom voter
fraud cases. Without a shred of evidence, David Iglesias, New
Mexico, John McKay, I believe it was, of Washington State, were
accused of not being vigorous in pursuing cases.
Moreover, without a shred of evidence, the phantom voter
fraud has prompted some States to require everyone to present a
driver's license or other ID before voting, even though that
disenfranchises the poor, the old, and many minorities who
don't have IDs. This infuriates me because I think this is
tampering with the well-spring of democracy for political
goals. We can say, well, no, we just don't want voter fraud.
Let me quote for you from the political director of the
Republican Party of Texas, George Bush's home State. It's where
the primaries were yesterday.
Here's what he said: ``Requiring photo IDs would cause
enough of a drop-off in legitimate voting to add 3 percent to
the Republican vote.'' That's an astonishing statement. I
believe, it seems to me logical, that that's what motivates
some of this voter fraud stuff, it's to prevent the poor and
minorities from voting. To me, it's despicable and it's
something I intend to pursue.
So let me see if there's really a problem here, because the
record reflects no problem. I'd like to ask you about the
results, if any, that the Justice Department has gotten in 6
years of this ballot integrity and access initiative.
Particularly, I want to ask you about in-person voter fraud. In
other words, the type of alleged fraud that can be cured by the
requirement of a photo ID.
When I say ``in-person fraud'' I'm talking just about
individuals who show up at the polling place, try to
impersonate a registered voter in order to cast a ballot
wrongly. In the 6 years since the initiative was launched, can
you tell me how many investigations of in-person voter fraud
has the FBI conducted?
Director Mueller. Sir, I'm happy to sit here and respond to
questions, but that was not a question that was a statement
that you made that is irrelevant to my role in terms of head of
the FBI.
Senator Schumer. I didn't ask you to adopt the statement.
Director Mueller. I understand.
Senator Schumer. I asked you--
Director Mueller. I'd be happy to answer questions.
Senator Schumer [continuing]. How many investigations of
in-person voter fraud the FBI conducted.
Director Mueller. I'd have to get back to you on that.
Senator Schumer. Could you get back to me in writing within
a week?
Director Mueller. I can get back to you, sir. Yes. I'd have
to find out where it is and to what extent we need to research
that to get back to you.
Senator Schumer. Okay.
The Brennan Center, nonpartisan, did an analysis of all 95
voter fraud cases that DOJ brought between 2002 and 2005. They
found that none of these cases was a case of in-person voter
fraud that could have been prevented by an ID requirement. Do
you have any reason to dispute that conclusion?
Director Mueller. I am not at all familiar with that study.
Senator Schumer. Okay. If, again, you could get me that
answer. And I'd like it within a week, because we have another
hearing on this subject. I think it's really important. If this
is such a big issue that States are busy passing voter ID, it's
a huge case before the Supreme Court right now that has Bush v.
Gore overtones, in my judgment--you don't have to agree--I
think we need those answers, and we need them rather soon. So
if you would get those to me quickly, I would very much
appreciate it.
Director Mueller. Yes, sir.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Whitehouse.
Senator Specter. Thank you, Mr. Chairman.
Welcome back, Director Mueller. It's good to have you with
us.
Following up on some of the discussion we've had about the
telecom immunity issues, should the good faith of telecoms be
an important factor in Congress' determination about immunity
here?
Director Mueller. I have not given any thought to that
issue. I'd have to think through that before I gave you an
answer.
Senator Specter. It's asserted fairly broadly around this
room, around this building, as a rationale in favor of
immunity, that because they acted in good faith--you used the
term, I think, earlier, patriotically. Is that--
Director Mueller. I would focus on other issues. It's hard
to quantify good faith, in some sense. Yes. I talk about
partnerships and the necessity for a partnership in order to
effectively address the threats that we have today. I would
focus more on the down sides, substantial down sides, of not
providing immunity, retroactive immunity, that I see as being
the principal rationale for the legislation that had come out
of this Committee, as opposed to the good faith--yes, the good
faith of the--I believe good faith is important, but I'm not
certain where it fits in the calculus as to the rationale for
going forward with litigation.
Senator Specter. Well, let me ask it less from the point of
view of going forward with the litigation, but us going forward
with the--
Director Mueller. Legislation, I meant. Not litigation.
Senator Specter. Then we're together.
If it were determined that telecoms that may have
participated in revealing private information about Americans
to the government did not act in good faith, should that affect
our judgment or should we go ahead, irrespective of the fact
that they did not act in good faith?
Director Mueller. I think the legislation should go
forward, but I--
Senator Specter. Even if they did not act in good faith?
Director Mueller. I don't want to excuse the failure to act
in good faith. If there's some evidence or indication they did
not act in good faith, then I do think there should be some
mechanism for addressing it.
Senator Specter. Yes.
Director Mueller. But I'm not certain that the mechanism
should be the failure to produce the legislation that I think
it necessary.
Senator Specter. Isn't the mechanism for determining the
good faith of a party of litigation traditionally judicial?
Director Mueller. Yes. But there are other mechanisms. The
Inspector Generals of various agencies can look at not only
just the actions of the agencies, but also the actions of the
private industry as they intersect with the Agency. So I
believe there are other mechanisms that can be put into place
to assure that there is no abuse of that legislation that may
be passed.
Senator Specter. But if you have a party in the litigation
whose good faith is at issue, isn't the judicial forum the
traditional forum for that determination, not an IG someplace
else?
Director Mueller. It is one of the fora, yes.
Senator Specter. In fact, in the history of the Republic
has there ever been an occasion that you're aware of where
Congress has stepped into ongoing litigation and made its own
determination of the good faith of a litigant?
Director Mueller. Well, phrased in that way, I don't know.
I've not studied it and I don't know.
Senator Specter. Yes. I can't think of one either, which is
why I asked the question. The concern I have is compounded by
the fact, is it not the case that the majority of Members of
Congress have not even been allowed to see the relevant
materials that would enable this institution, the Congress, to
make an informed decision about whether or not telecom
companies that may have participated in this activity did so in
good faith?
Director Mueller. I don't know to what extent there have
been briefings on the Hill, although I would say that in many
of the areas the Intelligence Committee knows about, learns
about, hears about, result in legislation in which the various
members of the House or the Senate did not have full knowledge
of all the information that led the Intelligence Committee to
request particular pieces of legislation, apart from this
particular piece of legislation.
Senator Specter. Let me go to another topic and follow up a
little bit on where Senator Leahy and Senator Schumer went
earlier. I'd like to ask you to put you in a hypothetical
situation. It is 8:02 in the morning of April 19, 1995. The FBI
has intercepted Timothy McVeigh. The FBI is aware that there is
a device that will detonate 1 hour later, 9:02, April 19, 1995.
You don't know where that device is. You have an hour. Do you
waterboard Timothy McVeigh? Setting aside questions about
voluntariness, setting aside questions about admissibility,
you're not trying to get legal evidence now, you're on a public
safety mission to prevent an explosion. Do you waterboard
Timothy McVeigh?
Director Mueller. I would prefer not to answer
hypotheticals. That's the difficult question you ask. I am
quite careful to say, I believe, that our techniques and our
protocols are sufficient and appropriate to our mission, given
our mission in the United States, which is somewhat different
than the mission of others, whether it be the military or the
CIA.
Senator Specter. In that circumstance--
Director Mueller. That's the horror that one--that's the
horror that one would not want to see. I would hesitate to--I
would hesitate--
Senator Specter. Would you waterboard?
Director Mueller. No. I don't feel that I can give an
answer at this juncture to a hypothetical like that because of
what may be drawn from an answer from that hypothetical.
Senator Specter. I am just saying--
Director Mueller. I am comfortable in telling us what our
policies are, what I believe our policy should be given our
mission, but I am uncomfortable in answering a hypothetical
along those lines.
Senator Specter. It could happen today.
Director Mueller. It could happen. It could happen.
Senator Specter. How would you respond?
Director Mueller. Don't know.
Senator Specter. You don't know how you would respond?
Director Mueller. I do not know how I would respond because
there are a number of factors I'd take into account. I'm not
certain it would be my response alone, whether the response of
the President, or others. And so I hesitate to--I understand
the hypothetical, but I hesitate to respond in one way or
another given the structure of facts you've given.
Senator Specter. So you cannot rule out that, under those
circumstances, FBI agents would waterboard an American for that
kind of information?
Director Mueller. I'm not going to speculate as to what
would be done at that point in time. I can tell you that I
would, in every instance, endeavor to utilize our protocol to
get the information that's necessary to save those lives.
Senator Specter. My time has expired.
Thank you, Chairman.
Chairman Leahy. Thank you very much.
I was just going to ask another question, but Senator
Cardin is here.
Senator Cardin.
Senator Cardin. Thank you very much, Mr. Chairman.
Mr. Director, I regret I couldn't be here for all the
hearing. We had some conflicts. But I just wanted to spend a
moment with you talking about two issues that I believe fall
under your priorities under civil rights enforcement, and that
is the preparations that you are making in regards to this
coming election, in regards to potential voter fraud. We saw,
in the 2006 elections, efforts made to try to suppress the
minority vote. I have raised those issues, and other members of
the Senate have raised these issues with the Department of
Justice.
I just really want to emphasize that, as we go into this
election season, if Federal laws are violated in an effort to
try to suppress participation, that the FBI will be there to
assist in making sure that our laws are complied with. I think
a signal given by your Agency at this point perhaps could have
impact on conduct during this election season and could be a
healthy thing for our country.
The second area I would like you to comment on would be the
enforcement of hate crimes laws. We saw that noose incidents
have increased in this country, the number of episodes has
increased in many communities, including in my home State of
Maryland, and I would hope that the FBI would be very vigilant
here in conducting investigations to make clear that such
conduct will not be tolerated in the United States.
I know that you've talked about a lot of your priorities
today, but these are two areas that I think your Agency has a
particular ability and expertise that local law enforcement
cannot do on its own, and would ask that you be mindful of
these two areas and try to direct the necessary resources.
Director Mueller. Well, with regard to the first one
relating to the election coming up and voter fraud, whenever
there is an election not only is there the FBI standing by to
investigate allegations, but also the Justice Department has an
Assistant U.S. Attorney in every district who has set aside
time and actually has been designated as the person to handle
those, both the agents as well as the--and in particular, the
U.S. Attorneys have some training that they've received in
order to handle appropriately allegations that may come in. I
would expect this election to be no different than those that
we've handled in the past, and we will have persons standing by
to appropriately investigate allegations.
As to--
Senator Cardin. On that point, just to underscore.
Director Mueller. Yes, sir.
Senator Cardin. And I'm very happy to hear that. To the
extent that that becomes well known, it can affect, I think,
the conduct in communities. So I would just urge you to not be
shy in letting people know that those resources are being made
available, to make it clear that violations of Federal law will
not be tolerated.
Director Mueller. That's true, and we do that. But I will
tell you, having had some experience with this, there are
occasions where one candidate thinks that they'll get ahead by
making allegations against another candidate as to voter fraud.
The one thing you don't want is a headline saying candidate X
is being investigated as a result of the allegation that comes
from the opponent. So we have to be--in doing our
investigations we have to be--have credible evidence that
warrants us moving forward, but we will be standing by and
investigating it.
Senator Cardin. I agree with that point. But when
literature is sent out to minority communities suggesting that
they may be arrested if they try to vote with unpaid parking
tickets or where information is sent out in minority
communities giving them the wrong date of the election, I think
those types of activities are not partisan political areas that
your involvement could have an impact on the election, but are
clear indications of people that have gone over the edge and
need to be dealt with.
Director Mueller. And those are the type of allegations we
would be investigating.
Senator Cardin. Thank you.
Now, on the second point relating to the noose instances of
hate crime issues?
Director Mueller. Our number-two criminal priority is civil
rights, and hate crimes falls within that ambit. To the extent
that there are allegations wherever in the country, we will do
a preliminary investigation and then consult with the Civil
Rights Division of the Department of Justice to determine
whether any further investigation is warranted in any of these
incidents that you mentioned.
Senator Cardin. I appreciate that. I just really want to
emphasize the point that we've seen an alarming increase in the
use of a noose in communities, which of course is the iconic
symbol of bigotry in our criminal justice system over a long
period of time. I just would urge us to get ahead of this,
particularly with the resources of your Agency, to make it
clear we won't tolerate that type of conduct for those who are
violating our rights and the civil liberties of all the people
of our country.
Director Mueller. We do that. We have--it's--we have
Citizens Academies at each of our field offices in which we
bring in groups of citizens and have them come in for a number
of weeks and learn the FBI, and these are areas in which we
explore within Citizens Academies our responsibilities in this
regard. We use that and other mechanisms to inform persons as
to our responsiveness to such crimes.
Senator Cardin. And just, last, I would ask that you would
keep the Committee informed in both of these areas as
activities unfold so that we are informed as to what you are
doing in regards to the rise of instances involving nooses and
the hate crimes issues, as well as problems that may develop
that look like are a pattern during this election season.
Director Mueller. Yes, sir.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I'll just be brief on a couple things. I was a co-sponsor
of the Emmett Till Unsolved Civil Rights Act that gives the
Justice Department, and the FBI, especially, long-overdue tools
to solve unsolved murders from the civil rights era. The Till
bill passed the House of Representatives with overwhelming
bipartisan support. It was unanimously voted out of this
Committee. The President and the White House have urged its
passage.
One Senator has put a hold on it. He expressed his belief
that the Justice Department does not need additional money to
solve these cases. But I understand from the press your Agency
has identified over 100 civil rights cold cases that merit
additional review. Do you share my concern that the FBI and the
Department of Justice could use these extra resources on these
cold cases, or old cases from the civil rights era?
Director Mueller. Yes, sir. I believe we have been
canvassing our field offices to determine what cases might be
reopened. We identified 95 such cases, opened on approximately
half of them, and are now down to 26 cases that warrant further
investigation. Those are 26 cases we will be putting our
agents, analysts, and professional staff on. And it competes
with other priorities, so we could always benefit from support
in that particular area.
Chairman Leahy. Well, we'll continue. Both the Republicans
and Democrats who have supported this will continue to try to
get the Emmett Till bill passed. I'm not naive enough to think
that that was an era long gone and will never come back. I've
always felt that in these areas the fact that people know that
eventually the law catches up with them, whether on the
lynchings, the burnings, the murders, whatever, that that
serves a deterrent factor.
I think many of the crimes that we saw during that era were
in a time when people thought they could act with impunity and
immunity. I think we have to demonstrate, no matter who you are
in this country, you cannot break the laws of that nature, you
cannot do those kind of things without the long arm of the law
catching up. I applaud you for those areas you've been able to
work in and we'll continue to try to get you the resources.
Director Mueller. If I might just add, that effort resulted
in the successful prosecution of Seale last year, as you are
well aware, for the 1965--'65--killing of Charles Moore and, I
think it was, Henry Dee. So justice was some time in coming,
but it did indeed come.
Chairman Leahy. And I was delighted to see that happen.
Congress has been attempting, as you know, to update the
FISA, the Foreign Intelligence Surveillance Act. When we ended
up in negotiations on it, both the White House and the
Republicans boycotted the negotiations. I state that as a
matter of fact, not as a partisan thing. The law lapsed, even
though there was an attempt to continue it.
In the last few days, I've been willing to enter back into
negotiations and I'm hoping the rhetoric will be lowered. When,
on the one hand, the White House will say, if this lapses we
lose all our surveillance, and on the other hand, we're not
willing to accept a continuation of the law. It's Alice In
Wonderland.
But I find that surveillance that is addressed has
continued. In fact, the only circumstance I am aware of in
which wire taps were uncovered--you and I have discussed this--
was the report by the Justice Department Inspector General
where the FBI failed to pay telephone bills in foreign
intelligence undercover cases. Some wire taps were then cut
off. Bills were being paid late. There was not an adequate
system for accounting on these confidential case funds. We've
discussed this a little bit already in today's hearings.
What's being done to make sure this sort of thing doesn't
happen? Because aside from all the political rhetoric, you
can't have the same government saying, gosh, we're afraid wire
taps are being cut off. But it turns out the same government
hasn't paid the bill, so of course wire taps were cut off.
Director Mueller. Well, I would be the first to say we did
not have an adequate system of assuring that the bills were
paid on time. I think in excess of 40 of our offices had no
problem whatsoever. There were several others that did have a
problem. We have tracked down the indications where--the cases
where a wire was cut off, supposedly as--I think as a result of
a payment of a bill, and it results to two instances, neither
of which adversely affected the investigation, and the lapse
was fairly short. So, it should not have happened. We have put
into place new mechanisms to assure that all the bills are paid
on time. But the adverse impact as a result of, in these two
instances, the line going down for a matter of days was
minimal, at best.
Chairman Leahy. Thank you.
You and I discussed the bullet lead analysis problem, where
the National Academy of Sciences had issued a report
discrediting the bullet lead analysis done at the FBI lab. You
then discontinued that. We've talked about the fact both of us
had the privilege to serve as prosecutors. One of the things
you never--you certainly want to convict the guilty, but what
you want to make sure, is you don't have flawed evidence that
convicts the innocent.
I understand you're working with the Innocence Project to
release cases where the FBI bullet lead analysis was done so
they can find out whether that was flawed evidence or whether
that brought about the conviction. Have you shared the list of
cases that have been possibly tainted by faulty bullet lead
analysis with the Innocence Project?
Director Mueller. Well, let me, if I could, say by way of
background, Mr. Chairman, we did commission a study back in
2003-2004 to look at the bullet lead analysis. A study did come
back and say, of the three prongs of bullet lead analysis, the
analysis part of it, as well as the laboratory part of it, were
appropriate, but it was the possibility in the statistical part
of it that could be overstated that resulted in us determining,
in 2005, that we would no longer use that, that particular
mechanism.
At that time we did notify the various defense counsel
organizations. We notified the various law enforcement entities
back through 1996 who had requested us to do that, and took
some steps to--substantial steps, I would think--to alert those
who might be affected.
We have gone back now and are putting together a list of
those particular cases where we did testify, trying to pull the
transcripts to determine whether or not the FBI laboratory
witness overstated the statistical import of the evidence, and
we will work with the Innocence Project to assure that that
information is provided to the appropriate person, whether it
be defense counsel, prosecutor, the like. I cannot tell you at
this juncture the numbers, but we do intend to work with the
Innocence Project on that.
Chairman Leahy. Thank you. If you could have your staff
just keep my staff apprised as that goes on, I'd appreciate it.
Director Mueller. We will do that, sir.
Chairman Leahy. I commend you for looking back.
Unless you want to add something to this enjoyable morning
you've had here, Director Mueller--
Director Mueller. No. The only thing, I do want to thank
you and the Committee for the recognition that it's the people
of the FBI that, day in and day out, regardless of the
challenge, whether it be counter-terrorism,
counterintelligence, violent crime, public corruption, or
serving the public well, I appreciate those comments because it
is true. We are lucky to be able to work with such fine men and
women. So, thank you for those comments. Thank you for your
support and suggestions.
Chairman Leahy. Thank you very much.
We stand in recess.
[Whereupon, at 12:16 p.m. the Committee was recessed.]
[Questions and answers and submission for the record
follow.]
[GRAPHIC] [TIFF OMITTED] T3361.001
[GRAPHIC] [TIFF OMITTED] T3361.002
[GRAPHIC] [TIFF OMITTED] T3361.003
[GRAPHIC] [TIFF OMITTED] T3361.004
[GRAPHIC] [TIFF OMITTED] T3361.005
[GRAPHIC] [TIFF OMITTED] T3361.006
[GRAPHIC] [TIFF OMITTED] T3361.007
[GRAPHIC] [TIFF OMITTED] T3361.008
[GRAPHIC] [TIFF OMITTED] T3361.009
[GRAPHIC] [TIFF OMITTED] T3361.010
[GRAPHIC] [TIFF OMITTED] T3361.011
[GRAPHIC] [TIFF OMITTED] T3361.012
[GRAPHIC] [TIFF OMITTED] T3361.013
[GRAPHIC] [TIFF OMITTED] T3361.014
[GRAPHIC] [TIFF OMITTED] T3361.015
[GRAPHIC] [TIFF OMITTED] T3361.016
[GRAPHIC] [TIFF OMITTED] T3361.017
[GRAPHIC] [TIFF OMITTED] T3361.018
[GRAPHIC] [TIFF OMITTED] T3361.019
[GRAPHIC] [TIFF OMITTED] T3361.020
[GRAPHIC] [TIFF OMITTED] T3361.021
[GRAPHIC] [TIFF OMITTED] T3361.022
[GRAPHIC] [TIFF OMITTED] T3361.023
[GRAPHIC] [TIFF OMITTED] T3361.024
[GRAPHIC] [TIFF OMITTED] T3361.025
[GRAPHIC] [TIFF OMITTED] T3361.026
[GRAPHIC] [TIFF OMITTED] T3361.027
[GRAPHIC] [TIFF OMITTED] T3361.028
[GRAPHIC] [TIFF OMITTED] T3361.029
[GRAPHIC] [TIFF OMITTED] T3361.030
[GRAPHIC] [TIFF OMITTED] T3361.031
[GRAPHIC] [TIFF OMITTED] T3361.032
[GRAPHIC] [TIFF OMITTED] T3361.033
[GRAPHIC] [TIFF OMITTED] T3361.034
[GRAPHIC] [TIFF OMITTED] T3361.035
[GRAPHIC] [TIFF OMITTED] T3361.036
[GRAPHIC] [TIFF OMITTED] T3361.037
[GRAPHIC] [TIFF OMITTED] T3361.038
[GRAPHIC] [TIFF OMITTED] T3361.039
[GRAPHIC] [TIFF OMITTED] T3361.040
[GRAPHIC] [TIFF OMITTED] T3361.041
[GRAPHIC] [TIFF OMITTED] T3361.042
[GRAPHIC] [TIFF OMITTED] T3361.043
[GRAPHIC] [TIFF OMITTED] T3361.044
[GRAPHIC] [TIFF OMITTED] T3361.045
[GRAPHIC] [TIFF OMITTED] T3361.046
[GRAPHIC] [TIFF OMITTED] T3361.047
[GRAPHIC] [TIFF OMITTED] T3361.048
[GRAPHIC] [TIFF OMITTED] T3361.049
[GRAPHIC] [TIFF OMITTED] T3361.050
[GRAPHIC] [TIFF OMITTED] T3361.051
[GRAPHIC] [TIFF OMITTED] T3361.052
[GRAPHIC] [TIFF OMITTED] T3361.053
[GRAPHIC] [TIFF OMITTED] T3361.054
[GRAPHIC] [TIFF OMITTED] T3361.055
[GRAPHIC] [TIFF OMITTED] T3361.056