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Text: Hearing on FBI Counterterrorism Efforts

Thursday, June 6, 2002

Following is the complete transcript of Thursday's Senate Judiciary Committee hearing on FBI counterterrorism efforts.

LEAHY: Just so people understand what we're going to do here today, we are going to have two panels--that's fine, it's good to have you here, too--the director of the FBI and then Inspector General Glenn Fine will testify. We'll have questions there. Then once this panel is finished, we will go off and we'll take a break and then we'll do the second panel, which will be Ms. Rowley.

I note that I have been reminded that there will be a vote around 11:00 o'clock. We will take a break at that time for about 10 minutes just to go and vote and then we'll come back.

Last week FBI Director Mueller--Attorney General Ashcroft made some extraordinary--actually indicates to the attorney general an unexpected announcement of changes in the organization of the FBI and the guidelines for its administration. Now, the Congress and the administration share a common goal. The goal, of course, is ensuring the safety and security of our country.

I look forward to hearing from the department and the FBI why these changes are necessary--the changes they propose--to prevent future terrorist attacks, and they may be right. But this Oversight Committee has both a duty and a responsibility to review these changes and their justification.

Ten days earlier Inspector General Glenn Fine issued a critical report in the handling of visas of two 9/11 hijackers by the Immigration and Naturalization Service. He made 24 recommendations to address deficiencies in INS' practices and procedures, and these suggestions, too, may be justified. This Oversight Committee has the job of examining whether the identified deficiencies are being fixed.

At the same time, the American people have been barraged with new reports about the government's performance before the 9/11 attacks, including charges and countercharges of mistakes by the FBI and the CIA; the handling of the Phoenix electronic communication, the critical letter from FBI Agent Coleen Rowley in the Minneapolis FBI office and a report that the attorney general turned down a proposal to increase the FBI counterterrorism budget by $58 million shortly before the 9/11 attacks.

Now, Director Mueller has confronted this mounting evidence and he's candidly admitted what we all now realize--that today, we can't say for sure whether the 9/11 attacks might have been stopped if all the dots had been connected and all the leads been followed, and I commend the director for the candor of his recent statements. I don't want a return of the worst aspects of J. Edgar Hoover's FBI, where no one at the FBI could admit or learn from mistakes, and anyone who raised a question did so at his or her peril.

Now, the Judiciary Committee has always been the standing committee of the Senate responsible for oversight of the Justice Department. We are accountable to the Senate and the American people for ensuring that the FBI, the INS and other department components are effectively organized, with adequate resources and with proper leadership. This committee considered the nominations of the FBI director, the INS commissioner, the inspector general and the attorney general, and we have a continuing responsibility to follow what they've done.

We started oversight hearings on June 20, and now more than ever in the age of terrorist attacks on our shores, close oversight of the FBI and other law enforcement and intelligence agencies is not an option. It's an imperative. I wrote to the attorney general and the director on October 25, 2001 in response to the U.S. Patriot Act to ask what internal reviews they were conducting in connection with the events of September 11. I told both the attorney general and the director to preserve any documents and information they had from before September 11, especially those documents and information that had been overlooked prior to September 11, and that they share with us important matters they uncover as they conducted the internal review of the events leading up to the tragedy of 9/11.

I was disappointed to learn only this week that the Justice Department's inspector general conducted an inquiry into the FBI's Phoenix electronic communication as early as last October. This was the type of thing that I had asked the attorney general to let us know about. I was concerned to read about it from the press and not to hear from the attorney general. So we're going to want to hear from Inspector General Fine about the circumstances and the results of his earlier inquiry.

Even more disappointing was the Justice Department's failure to advise the committee that its review of FBI guidelines after 9/11 uncovered issues that called for revision. Instead, we're presented with a fait accompli reflecting no congressional input whatsoever. From those comments over the weekend, it seems that Chairman Sensenbrenner and our counterparts in the House Judiciary Committee were likewise surprised by the unilateral actions taken by the attorney general in revising longstanding guidelines that have worked for decades.

I might say that attorney generals come and go; FBI directors come and go; the members of this Senate committee come and go. The Constitution of the United States stays the same. It has been the basic bulwark of our freedoms, and no matter what the short-term gains might be, no one in the Congress or in the administration can ignore the Constitution of the United States. To do so, we do it at our peril and we weaken the United States; we do not strengthen the United States.

After the AG's news conference last week, the department did post 100 pages of new investigative regulations on its web site. They may tell us these changes are relatively straightforward, reflect good common sense--that there was a need to change the guidelines that were followed in the Ford administration, the Carter administration, the Reagan administration, the first Bush administration, the Clinton administration--and therefore the stroke of the pen should be changed.

Well, I understand the need to reexamine policies, but we shouldn't throw out decades of wisdom just because of a bad week or two in the press. I agree with Chairman Sensenbrenner, these important safeguards of American privacy and freedom should not be significantly altered without careful consideration and a full explanation of the reasons for any changes.

Now, we've shown in Congress bipartisan work in the U.S. Patriot Act, the Aviation and Transportation Security Act, the Border Security and Visa Reform Act, the Bioterrorism Preparedness Act. We showed that we can work with the administration. So I cannot understand why the Department of Justice continues to insist on acting unilaterally, and as Chairman Sensenbrenner pointed out, without consulting with the Congress. It just disrupts an overall effort.

The regulations on surveillance of Americans not suspected of any crime are there for a reason. The intended change of the culture of the FBI is something all of us understand here in the Congress. The regulations on the handling of confidential informants are also carefully crafted. Just last month, an FBI agent in Boston was convicted of federal crimes based on his improper handling of mob informants. Two men spent years in jail for a crime they didn't commit. The FBI knew they didn't commit it, and the FBI kept quiet while these two men spent year after year after year in jail. That's wrong. Two weeks later we're planning on simultaneously loosening both headquarters' control and the rules for handling informants. The controls are there for a reason. They shouldn't be changed simply to fit a press conference.

I do appreciate the director's consultation with the leaders of the House and Senate Judiciary Committees and other members of Congress before he announced phase two of his reorganization last week. I look forward to hearing more steps on that. I believe the steps he's taken to refocus and redesign the operational structure of the FBI to prevent terrorist attacks are the right ones.

And I want to commend the hardworking men and women of the bureau and other agencies of the department who are working tirelessly and conscientiously in the best interest of the United States to protect us. But no flow chart or press conferences can fully reassure the American people that our government institutions are up to the present challenges, particularly in light of daily revelations of new lapses.

The director has outlined 10 clear priorities for the FBI and I agree with the director that the bureau cannot continue to devote scare manpower and technical surveillance resources to cases that could easily be handled by state or local police. We don't have enough manpower to do the things that really protect us. Both state and local police are very good, let them handle the local things. An example is a report this week of an extensive, year-long Department of Justice and FBI investigation of the operators of a prostitution ring in New Orleans. I realize it comes as an enormous revelation to the American public that there might have been prostitutes in New Orleans. I mean, who knew?


LEAHY: But according to press reports, FBI agents were listening to 90 calls a day and wiretaps that continued for months and amounted to more than 5,000 phone calls. The Department of Justice and the U.S. attorney claimed it was a federal case. Well, there are a whole lot of local laws in this. In fact, the local prosecutor said they wanted to worry about things of real importance and said they would pass up the list of all those wiretaps.

Now, Director Mueller's new priorities make clear the FBI has more urgent things to do. I'd encourage the Department of Justice to find more urgent things to do. Dealing effectively with counterterrorism is an important and immense task. You're not going to do it in only one branch of government. We've got to work together. The Congress has to be involved.

The series of hearings is focused on problems and constructive solutions to those problems. Many of them are reflected in the FBI reformat (ph), which we passed unanimously, Republicans and Democrats. Not an easy chore in this committee, but we did it.

These problems include the inadequacy of the FBI's information management and computer systems, security failures in the Hanssen case, the resistance of bureau officials to admit mistakes and double standards in discipline.

Senior FBI managers testified at these hearings. They laid out in detail what we need to do to get the FBI back on track. And I commend the director in working with those and being very candid in his own responses.

So the Department of Justice, the FBI, this committee, others have to stay the course. We want to make the FBI the most effective tool we have in this country to protect us against terrorists because, unfortunately, we know the terrorists still want to strike at us.

Senator Hatch?

HATCH: Well, thank you, Mr. Chairman. I want to commend you for holding this hearing on the oversight of the Department of Justice.

The hearing raises many critical issues. And our duties on this committee of examining and finding solutions to the problems where needed can complement the investigation of the bipartisan, bicameral Intelligence Committee on which several members of this committee, including myself, happen to sit.

We have today before us Robert Mueller. He started the job as director of the FBI one week prior to September 11. At the time Bob Mueller stepped into the position of director, the FBI was the subject of intense criticism and media coverage due to several high-profile embarrassments, such as the handling of the McVeigh documents, the belated discovery of the Hanssen spy case and the troubled Wen Ho Lee investigation.

Now, despite these problems, Director Mueller willingly and enthusiastically accepted the difficult challenge of reforming the FBI. It had to be overwhelming, as it is to lead any major organization, including the Justice Department.

On September 11 his challenges increased by several orders of magnitude. But there was no question then and there is no question now that Bob Mueller is the right person to implement essential changes at the FBI. His extraordinary qualifications, integrity and resilience make him the perfect fit for the job, especially in these trying times.

Indeed, Director Mueller has demonstrated he has the ability to reform a troubled organization. In August 1998, the Clinton administration asked him to serve as interim U.S. attorney for the northern district of California at a time when the office was experiencing great institutional problems. In short order, Director Mueller turned the office around and rebuilt it into one of this nation's best.

When it comes to management of a government office, Director Mueller's no-nonsense style has served him well. He has shown he has the ability to inspire others to do the best work for all of us American people.

While the FBI is composed of dedicated, hard-working agents who are some of the best in the world, we cannot let our respect for these accomplished men and women blind us to the fact that reforming the FBI, its structure and its culture is a critical mission; one that is imperative to the safety of all Americans in the face of a continuous terrorist threat to our country. This is what he has begun at the FBI, which we'll hear about today in detail.

There is no question that there are significant issues concerning the specific steps the FBI took in its pre-9/11 investigation and analysis, particularly in Minneapolis and Phoenix. Special Agent Coleen Rowley has raised important issues relating to the FBI's handling of the Moussaoui investigation in Minneapolis.

This committee will not and, indeed, cannot shrink from its duty to examine these difficult and troublesome issues. However, I went to emphasize that this inquiry should be forward-looking with an eye toward reforming the FBI, protecting the American public and making sure that such an act never occurs again on our soil.

The forward-looking examination will serve the American people far more than a typical Washington gotcha investigation of missed clues and political fodder. We cannot afford such an inquiry, because we all recognize on this committee and on the Intelligence Committee this is a serious matter.

Our focus must remain on reforming the FBI and giving Director Mueller the support and resources he needs to change the direction of this massive law enforcement agency. The American public deserves nothing less than the full and complete cooperation of this committee to ensure that the FBI is reorganized and given the tools it needs to face the challenges of the future of our country.

HATCH: Also, very seldom are mentioned the tremendous accomplishments of the FBI, the number of terrorist incidents all over the world that they have helped to interdict and stop over the intervening years both before and after 9/11--some of which can't be mentioned.

I want to take time here to specifically commend Director Mueller for his handling of Special Agent Rowley's letter. While it would have been easy to play the typical Washington game of pass-the-buck and blame somebody else, Director Mueller has embraced Special Agent Rowley's letter and recognized that her observations underscore the need to implement his reorganization plan, one which aims at the heart of the issue--the FBI culture and possible structural road blocks to effective law enforcement.

To this end, Director Mueller has the confidence and the courage to welcome criticisms, to examine their merit and to make sure that such criticisms are not simply sweeped under the rug, but are carefully and candidly weighed.

I think it is important to note that the new director's recently announced reorganization proposal addresses some of the criticisms and problems identified through the pre-9/11 inquiry.

First and foremost, Director Mueller's reorganization proposal fundamentally alters the FBI's mission. Director Mueller has proposed a new forward-thinking approach, one that is built on proactive detection and is aimed at preventing another deadly terrorist attack. To this end, Director Mueller has proposed a reorganization plan which will improve the FBI's analytic capacity, enhance its ability to gather, analyze and disseminate intelligence concerning terrorists and racketeers, further its ability to share information internally and with other law enforcement and intelligence agencies, and decentralize those functions that need to be reallocated to the field while centralizing critical intelligence-gathering and analysis functions to support its overall mission of preventing crime before it occurs.

Director Mueller's recently announced comprehensive reorganization package comes on the heels of his initial reorganization of FBI headquarters. As we all know, in late 2001, Director Mueller reorganized the FBI's headquarters to reflect the changing priorities and direction of law enforcement by assigning four new executive assistant directors to oversee counterintelligence and counterterrorism matters, criminal investigations, law enforcement services, and the administration of the FBI. He also created two new divisions to address computer-facilitated crimes and security, and four new offices to address information technology, intelligence, records management, and law enforcement coordination with state and local law enforcement partners.

He couldn't have done that before the enactment of the Patriot Act, which this committee played a significant role in doing.

Finally, Director Mueller accelerated a major overhaul of the FBI's technology system, which will better enable it to gather, analyze and share information and intelligence.

Like Director Mueller, Attorney General Ashcroft reorganized the need for increased FBI oversight and reform as soon as he took office. And prior to September 11, he enlisted the assistance of a number of independent reviewers. In March 2001, in response to the Hanssen case, Attorney General Ashcroft established an independent review board headed by William Webster to examine the FBI's security procedures. In July 2001, the attorney general hired management consultants to study the FBI and he expanded the jurisdiction of the Justice Department's inspector general to include oversight over the FBI.

And we're very pleased to have Mr. Fine here with us today, as well.

In the wake of September 11, Attorney General Ashcroft worked closely with this committee and Congress to ensure passage of the Patriot Act, which has provided the law enforcement community with additional tools and resources they did not have and which are necessary to attack terrorist organizations.

And like Director Mueller, Attorney Ashcroft took quick and affirmative steps to protect the American public and fight the war against terrorism. The attorney general established 93 anti-terrorism task forces across the country, which are working to integrate the communications and activities of local, state and federal law enforcement offices--something he could not have done before the Patriot Act.

He created the Foreign Terrorist Tracking Task Force in order to assist the FBI, INS, Customs Service and other federal agencies in coordinating their efforts to bar from the United States aliens who are suspected of being involved in terrorist activities.

Last week, Attorney General Ashcroft announced amended investigative guidelines that will assist the FBI in conducting investigations capable of preventing terrorist attacks. These guideline changes support and, in fact, are critical to the FBI's reorganization plan.

Now, though I am pleased to learn that there is bipartisan support for these guideline revisions, I understand that concerns have been voiced about their scope. It seem obvious to me, however, that if we are serious about ensuring that the FBI can and does operate proactively investigating future rather than merely past crimes, the bureau must be given the ability to do things our Constitution permits, like search the Internet, use commercial data-mining services and visit public places.

HATCH: There is little question that the number-one concern of all Americans is to make sure that we protect our country against terrorist attacks, not provide more rights to suspected terrorists than our Constitution requires. Our safety and security depend on striking the right balance.

Now, Director Mueller and Attorney General Ashcroft should be commended for the degree to which they have focused their cooperative attention on reforming their respective institutions. Both have instituted independent investigations and both have been responsive to the inquiries of this committee and the Joint Intelligence Committees. As a member of the Joint Intelligence Committee, I can assure you of that. Not only has the director testified before this committee, he has also briefed members of this committee and made other senior FBI employees available to address various issues of concern, including those raised by the Phoenix memorandum and the Rowley letter. This is the first time in the past decade that the director of the FBI and the attorney general actually have a cooperative working relationship, as they should--the first time.

We will also hear today from the Honorable Glenn Fine, the inspector general of the Justice Department, who is in the process of completing a number of investigations relating to subjects of this hearing. His conclusions will naturally be a valuable resource in this restructuring process.

And I look forward to hearing from you, Mr. Fine, as well and appreciate the work that you're trying to do.

There is no question we need to consider how to improve all components of the Department of Justice to best protect our American people. In our oversight role, we should not blindly accept proposed reforms, but instead ask tough questions to ensure that they will address the problems that exist.

However, we cannot and we should not try to micromanage the Department of Justice. We will succeed in being a constructive and integral part of the reform process if, and only if, we work collaboratively with those in the Department of Justice, the FBI and the INS--the Immigration and Naturalization Service.

We all need to recognize that this is a process that will take time. At the same time, we will act as expeditiously as possible because the stakes are so high.

So I appreciate you, Mr. Chairman. I appreciate this hearing. I appreciate our witnesses who have agreed to testify today. And I look forward to working with you to help resolve any and all problems that we might have.

LEAHY: Director Mueller, the floor is yours. I know that you've eagerly awaited this opportunity to be here.


But, no, we do appreciate--everybody on both sides of the aisle appreciate it. I think you heard from both Senator Hatch and I that the two of us appreciate your willingness to be available, as you have, to all of us with our questions.

Please go ahead, sir.

MUELLER: Thank you very much, Mr. Chairman and members of the committee.

It has been nine months now since the attacks of September 11.

LEAHY: Pull the microphone nearer you, would you please, sir?

MUELLER: Surely. Is that better?


MUELLER: Can everybody hear now?

Let me just say thank you again, Mr. Chairman. And let me start by saying it has been nine months now since the attacks of 9/11. And when I came to the FBI just one week short of September 11, I must say that I did not anticipate what lay around the corner. And in that span of a few short minutes, our country was changed forever and terrorism had taken the lives of thousands. And our country looked to the FBI to find out who did this and to not let it happen again.

A massive investigation ensued, mobilizing, as only the FBI can, over 6,000 agents who poured themselves into the effort, both here and abroad, following up on some 500,000 leads. All of these shreds of information we painstakingly uncovered led to figuring out who was responsible and how it was done.

And I, as you also, Mr. Chairman, and others have expressed, am extraordinarily proud of the men and women of the FBI and of the CIA and of all of the agencies who made the sacrifices and did the work that ultimately led us to knowing who was responsible for these acts.

MUELLER: And as we go through this process, their efforts should never be lost or go unrecognized in our haste to look back and see how we can do things better.

Just as we knew on September 11 that we had to find out who was responsible for this, we also knew our charge had changed forever. An honest and comprehensive examination of the pre-September 11 FBI reflects an agency that must evolve and that must change if our mission, our priorities, our structure, our work force and our technologies are to revolve around the one central, paramount premise of preventing the next attack. The need for change was apparent even before September 11. It has become more urgent since then.

Now, when we look back, we saw things that we should have done better and things that we should have done differently. But we also saw things that were done well and things that we should do more of. But almost from day one we began to change.

At the end of last year, I described to Congress a new headquarters structure, one designed to support, not hinder, the critically important work of our employees, particularly the special agents in the field. And since then, I have taken any number of steps to put in place what can be described as the tools of prevention and to put in place permanent solutions to the painful lessons of Robert Hanssen and the McVeigh documents. This committee knows from prior hearings about much of this.

Now, let me just spend a moment talking about some of these new functions and organizations that we have put in place in the process of developing an FBI that is more focused on prevention.

As an example, we have a financial review group, which is dedicated to the financial transactions aspect of terrorism. The Foreign Terrorist Tracking Task Force is exploiting new data-mining capabilities. The number of joint terrorism task forces across the country has expanded. A national Joint Terrorism Task Force now gives interagency coordination and information-sharing new dimensions.

We have document exploitation teams to maximize the intelligence value of the troves of documents being recovered overseas. Interview teams are exploiting those individuals who have been detained by our military.

Former Police Chief Louis Quijas is now in place as the assistant director in charge of law enforcement coordination to better bring our partners to the table.

A college of analytical studies has been established at our training academy. New agent training has been revised to reflect the post-9/11 realities.

And last, as important, is that several FBI-CIA information-sharing and coordination initiatives have been implemented to increase our coordination and sharing of information.

These include both changes at the top--Director Tenet and I meet almost daily--to changes throughout the organization, and ranging from daily exchanges of briefing materials, a joint daily terrorism threat matrix, more CIA personnel at the FBI and more of our personnel at CIA, and joint reviews in the field and the like.

And finally, as I think, Mr. Chairman, you pointed out, we have a new security division, which is up and running, as well as new records management division. And both of those initiatives address those issues that arose in the course of the review of the Hanssen and McVeigh issues.

Even in the midst of the post-9/11 fervor, much more has been accomplished, but more needs to be done.

In the last few weeks, I have presented for congressional consideration the next and arguably the most important phase of reorganizing the FBI. This reorganization proposal comes after consultation within the bureau, with the attorney general, with administration officials, with state and local law enforcement and with members of Congress.

Now, I have provided a lengthy statement for the record which details the shifts in resources and the additional organizational changes, I believe, are imperative to fully support the complete transition to prevention. These changes which include new resources, new analytical capability and new technology are critically important to supporting our new way of doing business.

MUELLER: Coupled with these changes are new and more focused priorities, again, outlined in that statement which I've provided to the committee.

And while we believe these changes to be a dramatic departure from the past, in the end our culture must change as well. And I believe Senator Grassley has it right when he says that there has to be a wholesale change in the culture, away from reacting to crime to preventing new terrorist attacks. And with that, I think we call agree.

In the end, two things have come to symbolize that which we are changing: First, what did not happen to the Phoenix memo points squarely at the need for greater analytical capability and greater ability to share our information. And second, the critical but welcomed letter from Agent Rowley reinforces the need for a different approach, especially at headquarters. What we are doing squarely addresses both of those concerns. And what we are proposing will help provide a more agile, flexible and focused FBI that we need to meet that primary objective of preventing the next attack.

I might also add that what may be the most critical component in giving us a better capacity or capability to prevent the next attack is substantially increasing our capacity to both analyze and share information. The new office of intelligence is critically important to this, and that is why I wanted this office to be headed by a senior career CIA analyst, who will instantly bring to us a wealth of experience and expertise and who will guide not only the FBI's analysts but also the 25 CIA analysts that Director Tenet has generously given to us to assist us in our efforts.

I want to just spend a moment talking about the urgency of these moves. The world remains a very dangerous place. The information gleaned from Guantanamo and other captured Al Qaeda officials reflects that disrupting is not dismantling and that the inherent vulnerabilities of a free society are well understood throughout the terrorist community. Those who want to hurt us remain highly motivated, well funded and spread out around the world. They and the other recognized international terrorist groups are as determined as ever. And while we and our CIA counterparts continue to identify, continue to arrest, continue to deport or continue our otherwise counteroperatives to otherwise address operatives and sympathizers around the world, there are still loose and dangerous alliances remaining around the globe.

We must take the long view and be prepared to mobilize whatever level of resources circumstances dictate. The restructuring I have proposed is critical to sustaining those efforts.

Now, let me briefly address the changes in the attorney general's guidelines. I know you mentioned that, Mr. Chairman, and I know they are a subject of interest to many of you.

The changes are designed to increase the ability of our field agents to gather the intelligence we need to prevent terrorist attacks. To that end, they reduce some of the bureaucratic hurdles requiring headquarters' approval for certain steps. And in the provision that has gotten a great deal of attention, they permit FBI agents to go to public places or anyone else, except FBI agents--including state and local police and non-Justice Department law enforcement agents--are always free to go. Remember, though, that they may do so solely for the purpose of detecting and preventing terrorist activities, and there are strict limits on record-keeping in such instances. No information obtained from such visits may be retained unless it relates to potential criminal or terrorist activity.

And I must say and emphasize that, as an institution, we are and must be and continue to be deeply committed to the protection of individuals' constitutional and statutory rights. Nothing in the amended guidelines changes that.

I'd be happy to answer any questions. I know that some of you have questions relating to the handling of various cases and investigations.

MUELLER: I have previously discussed those with members of the committee in executive session and would be pleased to do so again. Because of the applicable legal rules and because of the sensitivity of ongoing investigations relating to our efforts to prevent terrorist attacks, I am obviously limited in what I can say about such matters in open session. I appreciate the committee's agreement to our continuing to discuss such matters, those matters, in executive session.

Thank you, Mr. Chairman, for the opportunity to give a statement.

LEAHY: Thank you, Mr. Mueller, and thank you for being available to members of the committee as you have.

Inspector General Fine, would you go ahead, sir? And we appreciate having you back here, as we always have on other occasions when you've been here.

FINE: Thank you, Mr. Chairman, Senator Hatch and members of the committee. I appreciate the opportunity to appear before the committee to discuss the work of the Office of the Inspector General relating to counterterrorism issues in the Department of Justice.

At the outset, let me express my respect for the many employees and department components, like the FBI and the INS, who serve on the front lines in our nation's counterterrorism efforts. While the OIG has found significant deficiencies in FBI and INS operations over the years, this should in no way diminish the important contributions that thousands of employees at these agencies make on a daily basis.

Since the September 11 attacks, the OIG has redirected significant resources to examine programs and operations that relate to the department's ability to detect and deter terrorism in the United States. This morning, I will highlight a few of the reviews that are discussed in greater detail in my written statement.

The OIG recently released a lengthy report that examined why the INS mailed forms notifying a Florida flight school that two September 11 terrorists had received approval to change their immigration status from visitors to students six months after the terrorist attacks. The OIG found that the INS' adjudication of Mohammed Atta's and Marwan Al-Shehhi's change of status applications and its notification to the flight school were untimely and significantly flawed.

First, the INS took more than 10 months to adjudicate the applications. As a result, they were not adjudicated until well after the two had finished their flight training course.

Second, the INS adjudicator who approved their applications did so without adequate information, including the fact that Atta and Al-Shehhi had left the country two times after filing their applications, which meant that they had abandoned their request for a change of status.

And third, the notification forms were not send to the Florida flight school for an additional seven months, because the INS failed to adequately supervise a contractor who processed the documents.

Atta's and Al-Shehhi's case highlights important weaknesses in the INS' handling of foreign students. Historically, the INS devoted insufficient attention to foreign students and its current paper-based tracking system is inaccurate and unreliable. SEVIS, the new Internet-based system the INS is developing has the potential to dramatically improve the INS' monitoring of foreign students.

But unless the INS devotes sufficient resources and effort to implement and use SEVIS effectively, many problems will continue to exist. Our report offers 24 recommendations to help address the problems we found.

We have also conducted five follow-up reviews after the September 11 attacks that examine the INS' efforts to address national security deficiencies that were highlighted in previous OIG inspections. These reviews examine the INS' progress in securing the northern border, linking INS and FBI automated fingerprint identification systems, the visa waiver program, addressing security concerns regarding the transit without visa program, and tracking non-immigrant overstays. In each of these follow-up reviews we found that many of the security concerns we identified in our original reports continued to exist.

Let me now turn to OIG reviews in the FBI. The OIG has initiated a wide range of audits, inspections and investigations in the FBI related to information technology, counterterrorism and national security issues. I testified before this committee in March of this year about the OIG report on the belated production of documents in the Oklahoma City bombing case. That review highlighted the significant weaknesses in the FBI's computer systems, which we found to be antiquated, inefficient and badly in need of improvement.

We concluded that the FBI's troubled information systems are likely to have a continuing negative impact on its ability to properly investigate crimes and analyze information throughout the FBI. Following up on these findings, the OIG is currently reviewing whether the FBI is adequately managing the acquisition of its information technology systems.

FINE: We are also reviewing, in another audit, how the FBI managed the counterterrorism funding it has received since 1995. As part of this review, we are evaluating the processes by which the FBI determines its counterterrorism resource requirements, manages those resources, conducts threat assessments and develops its strategic planning related to counterterrorism.

Another ongoing OIG review is examining the FBI's allocation of resources to investigate the varied crimes under its jurisdiction. Our objectives are to determine the types and numbers of cases the FBI investigates by office over time, assess performance measures for FBI casework and determine of the mix of cases investigated by the FBI comports with FBI priorities.

Last week, the OIG initiated an investigation that will examine aspects of the FBI's handling of information and intelligence prior to the September 11 attacks. Investigation will focus on, among other things, how the FBI handled an electronic communication written by its Phoenix division in July 2001, and issues raised in the May 21, 2002 letter to the FBI director from Special Agent Coleen Rowley.

The OIG had conducted a preliminary inquiry in the fall of 2001 into the handling of the Phoenix EC at FBI headquarters. We determined that the matter should be referred to the Senate and House Intelligence Committee's joint inquiry, the congressional committee that had been established to review the range of intelligence and law enforcement information related to the September 11 attacks.

Our referral to the joint inquiry was based on our view that the Phoenix EC should be analyzed in the context of other information available to and handled by the FBI and other intelligence agencies prior to September 11.

However, in light of recent events and several requests for the OIG to conduct a full review of how intelligence information was handled tat the FBI prior to September 11, including a specific request from Director Mueller, we have agreed to undertake a full investigation of the Phoenix EC, the issues raised by Special Agent Rowley's letter, and the FBI's handling of other intelligence information prior to the September 11 attacks.

Finally, I would like to briefly mention FBI whistleblower issues. One of the most important changes the FBI can make as it looks to the future is to foster a culture in which employees are able to raise deficiencies in programs and operations without fear of retaliation.

In my statement, I describe the regulations that apply to FBI whistleblowers. The OIG supports strong protections for FBI whistleblowers as a way to improve agency operations. In the past, FBI whistleblowers have been the impetus for significant positive change in the FBI.

In sum, we believe that these important OIG reviews that we have conducted and are conducting within the FBI will provide useful information and analysis to the department and Congress in conducting oversight of the FBI's critically important mission.

That concludes my statement, and I would be pleased to answer any questions.

LEAHY: Thank you.

You did--the memo to do the inquiry on the Phoenix electronic communication, you got that in September, is that correct?

FINE: We received it September 29--I believe it's September 28 we received the Phoenix EC from the FBI.

LEAHY: And you gave it to the joint committee two weeks ago?

FINE: We gave the results of our preliminary inquiry on, I think, May 22, correct.

LEAHY: About six months later. More than that.

Director Mueller, the Phoenix EC, or electronic communication, is classified, but let's just--referring just to what's been in the press accounts it's made clear that this July 2001 document warned about radical Middle Eastern fundamentalists, connected to terrorist groups, attending flight schools in this country, possibly for purposes of training for terror operations. The warning was certainly relevant to the profile of Zacharias Moussaoui, especially at the time when the Minneapolis field office and the headquarters personnel were trying to complete a FISA application.

FISA, again, for everybody watching, is the special foreign intelligence court, and they were trying to get an application to the FISA court for possible searches. Now, it's obviously--it's very apparent that the information in the Phoenix EC would have helped bolster the request for a FISA search on Moussaoui.

Now, you told us on May 8, at your last appearance before the committee, that the Phoenix memo was not used by agents who were investigating the Moussaoui case in Minnesota or at headquarters. But the Phoenix EC was just that--electronic communication that was uploaded onto the FBI's computer. It was sent to headquarters on the FBI's computer system. I understand it was accessible both at headquarters and in certain field offices on the FBI's automated case system. But it was not accessible in the Minneapolis field office.

LEAHY: Is that correct?

MUELLER: I believe that is--I understand that is correct.

LEAHY: Well, if the EC was fully accessible in the FBI's automated case system, did the agent or headquarters do what most of us are used to doing on a computer, do a routine search for key words like "aviation schools" or "pilot training"?

MUELLER: Well, in response to the question as to whether or not the Phoenix EC was available to other offices around the country, my understanding is that it was not available to other offices around the country. It was, quite obviously, available to headquarters. It was sent to headquarters. And it was available to other offices to whom that EC was sent: New York, I believe, and, perhaps, one other office out West.

LEAHY: Well, let's just take those to which it's available, headquarters. Did they do a search beyond just a name, but do things like "aviation schools" or "pilot training"?

MUELLER: It's my understanding that they did not.

LEAHY: That would have been helpful if they had, wouldn't it?

MUELLER: I believe it would have been helpful, and one of the things that I have stated on many occasions is that what I would hope to have in the future is the technology in the computer system that would better enable us to do exactly that type of search. It is very cumbersome, very difficult, for a variety of reasons, given our technology, to do that kind of search now.

My hope in the future is to have the kind of soundex searching capability that would give an agent the capability of pulling out any EC relating to aviation. And beyond that, my hope is that we would have the capability of some form of artificial intelligence so we wouldn't have to make the query.

LEAHY: But the...

MUELLER: The technology itself would alert us to those commonalities.

LEAHY: That, of course, is something a number of us on this committee have been urging the FBI to do for years, I mean, long before you came there. And I really think it's very much, as I've said at other hearings, very much of an Achilles heel that you can't do the kind of things that all of us are used to doing on our computers if we're looking for the best buy on an airplane ticket or something we want to purchase.

The so-called Woods procedures that were put in place April 15--and thank you for having the procedures declassified. I don't know why they were classified in the first place, but I do appreciate you having it declassified so the committee members here can have them. But that talks about processing place of applications. It directs agents in the field to do an ACS computer search for targets to see if any other information pops up.

And there's a requirement for headquarters personnel to check the ACS system. And I would assume, am I correct, that that would be because headquarters personnel are apt to have access to more information than a field agent might have, is that correct?

MUELLER: I think it's to make certain that we cover both bases. That for purposes of the court, the court needs to know whether there are other outstanding investigations relating to those targets. And consequently, it is important that the searches be done by the case agent who is most familiar with the facts of the case, but also more broadly in headquarters to assure that nothing is overlooked.

LEAHY: In fact, the Woods procedures tells the case agent to do that.

MUELLER: I am not intimately familiar with the Woods procedures, but I believe that's the case.

LEAHY: So if they don't do the search, either in the field or headquarters, they actually violate the FBI's own procedures.

The reason I bring this up is that we're talking about new procedures, I would hope they were following the procedures that were already in place. I mean, this is a case where we're going to go back and forth on whether there could have been a FISA application on Moussaoui, whether there could have been the kind of searches that, in hindsight, we all wish had been done, but yet all the information was there, and I think they could have gone to it.

MUELLER: Mr. Chairman, I think there's a--the searches are done for the FISA under the Woods procedures, as I understand it. And I would have to go back and review to make certain. But go through and search the names to determine whether any of the names that are going to be the subject of the scrutiny in the FISA that have turned up in any other investigation, as opposed to picking up a piece of information from an EC which relates, for instance, to flight schools.

And what we have to do a better job of, both technologically and with the analytical capability that I am suggesting that we are establishing, is to pull out pieces of information from an EC that may relate to flight schools and be able to put that together with other pieces from other investigations, not just focusing on the targets and the names of the individuals who are the subject of the scrutiny, which I believe, if I'm not mistaken, the Woods procedures are in part directed toward.

LEAHY: But in fact, it would make just common sense that it's going to be a lot more than just the names. I mean, it's the type of things they're doing in method of operations and so forth, they could be very, very important. I mean, people can change names very easily. What they're trying to accomplish, though, is what we're interested in, is that not correct?

MUELLER: That's correct.

LEAHY: And you talked in your organization, reorganization, forming flying squads to coordinate national and international terrorism investigations. The attorney general has announced new FBI investigative guidelines to allow field officers more discretion to open these terrorism cases without headquarters' approval, in fact, be able to keep them open for as much as a year before they're reviewed at headquarters.

Were you involved in crafting these new guidelines?

MUELLER: I know we in the FBI, we had individuals who consulted with and participated in discussions with the Department of Justice, yes.

LEAHY: Did you sign off on them?

MUELLER: I was aware of the guidelines, yes.

LEAHY: Senator Grassley and I wrote to the attorney general, asking that he personally guarantee full whistleblower protection for Special Agent Rowley. I'll let Senator Grassley speak for himself, how he thought about the response. I think he was disappointed by it.

Can you personally assure this committee unequivocally there will be no retaliation of any kind against either Coleen Rowley or Kenneth Williams or any FBI employee because they provided information to the Congress or the inspector general or any supervisory FBI official about counterterrorism efforts?

MUELLER: Absolutely. I issued a memorandum November 7 reaffirming the protections that are afforded to whistleblowers, in which I indicated I will not tolerate reprisals or intimidation by any Bureau employee against those who make protective disclosures, nor will I tolerate attempts to prevent employees from making such disclosures.

In every case where there is even an intimation that one is concerned is about whistleblower protections, I immediately alert Mr. Fine and send it over so that there is an independent review and independent assurance that the person will have their protections warranted.

When I go around the country and talk to the various offices, you know, one of the things I say is that the good news always comes to the top. What does not come to the top is the bad news. What does not come to the top are those things that need to be changed. What I need to know are those things that are broken that need to be fixed.

And throughout those discussions in the field offices or with individuals, I reiterate, I want people around me who will tell me what is happening. I want people in the field to tell me what is happening. I cannot get out to talk to every one of the 11,000 agents out of the 27,000 employees, but I need to know what's happening throughout the field. And I encourage, welcome, the criticism, the insight, the suggestions, whether it be from within the organization or from without the organization.

LEAHY: And the reason I ask, of course, Mr. Director, is that the FBI is currently exempted for the Whistleblower Protection Act, so we have to rely on your assurance. And I accept your assurance.

Senator Hatch.

HATCH: Thank you, Senator Leahy.

Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently--to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?

MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, "agent of a foreign power." And that has been defined as including an individual who is associated with a terrorist group.

HATCH: How many of these approximately 20 terrorists that we have been very concerned about participated in the September matter? How many of those could you have gotten a warrant?

MUELLER: Well, prior to September 11 the 19 or the 20 hijackers, it would have been very difficult, because we had--in looking at it, trying to go back we had very little information as to any one of the individuals being associated with...

HATCH: Foreign power.

MUELLER: ... a particular terrorist group.

One of the issues in the Moussaoui set of circumstances was whether or not the evidence was sufficient to show that Mr. Moussaoui was associated with any particular terrorist group. If you talk to the agents--and I know we've had Ken Williams and other agents up briefing the Congress--I believe the agents will tell you that one of the problems they have in this area, which we believe Congress ought to look at, is the requirement that we tie a particular terrorist to a recognized terrorist group.

HATCH: Or a foreign power.

MUELLER: Or a foreign power--agent of a foreign power.

HATCH: In fact, you probably would have had a difficult time showing that any of them were agents of a foreign power.

MUELLER: A terrorist group, a defined--and it's a loose definition--a terrorist group has been defined as an agent of a foreign power.

Our problem comes in trying to show that a particular individual is connected to a specific, defined--in a variety of ways--terrorist group. I mean, once we get a connection with Al Qaeda, for instance, even though it is not a foreign power, Al Qaeda is sufficiently distinct group so that we can get the FISA that we need.

But we have problems where you have a lone wolf, for instance, who may be out there who we think is a threat, but we have difficulty tying to any particular defined terrorist group.

HATCH: Well, if we try to change that, I presume a lot of civil liberties groups and persons will be very much against making that change.

MUELLER: I can't speak to that, Senator. But I do think it is something that we need to look at and that Congress should take a look at.

HATCH: My understanding is Senators Schumer and Kyl have just introduced...

MUELLER: I heard yesterday that there was a bill, and I have not had a chance to review it. But it is something that (OFF-MIKE)

HATCH: Now, I have real concerns that some terrorist groups have been able to hide and operate in this country under the cloak of political and religious institutions. We've seen that. This is obviously a very sensitive issue. And I have two questions relating to this topic, as one who has championed both religious freedom and protecting, you know, our First Amendment rights.

Under the old guidelines, were there any situations where the FBI was unable to pursue legitimate investigations, because of a fear that investigating criminal activity occurring the guise of political and religious activity.

MUELLER: Yes, I'm lead to believe that that is the case.

HATCH: Can you provide us any examples of how such institutions were able to facilitate terrorist activities?

MUELLER: I would have to go back and query the field with specific examples.

But in my general discussions and general briefings, the understanding of the agents was that you needed predication to start a preliminary inquiry, predication to the extent that somebody was contemplating criminal acts.

MUELLER: And after that there were a limited number of options that you had that you could follow in the course of that investigation.

What the guidelines change does is open up the possibilities that the agent can utilize, once the agent has determined that there is information pertaining to terrorist or terrorism activity.

HATCH: The prior investigative guidelines were adopted in response to significant FBI abuses, according to some, that occurred several decades ago. Now, some have raised concerns that the new guidelines the department has put forth may infringe on civil liberties. In public statements, however, you and Attorney General Ashcroft have emphasized that the new investigative guidelines are necessary (inaudible) prevent and detect terrorism and other crimes before they occur, which is what the FBI is being criticized for, for not having done; being great after the crimes occur, but not so good before in the prevention area, before they occur.

Now, you have also indicated that these guidelines will preserve and prohibit any action which would impact our constitutional freedoms and statutory protections. Now, would you explain to us how the new guidelines will assist law enforcement officers in detecting and preventing crime, while at the same time preserving our civil liberties?

MUELLER: I think the best example is the Internet--the use of the Internet. Just about every, actually 12-year-old, not just law enforcement individuals or in other agencies, could go on to the Internet and determine whether or not there are web sites that have an address--manufacturing explosives, encouraging persons to commit violent acts against the United States, encouraging people to sign up to commit violent acts against the United States.

What the guidelines do are free the agents to go and do that preliminary analysis without believing that it is contrary to the guidelines, and it covers most specifically in the terrorism area. And that freedom is critically important for us to keep abreast of what terrorists are doing utilizing the modern means of communication.

HATCH: On the issue of profiling, which, of course, is a very sensitive issue, you say, one way or the other--or can you say one way or the other whether fear of being accused of improper, quote, "racial profiling," unquote, may have caused law enforcement agents to be reticent in investigating claims or approving investigations into certain suspects?

Now, how does the FBI define racial profiling, and has this definition changed in any way since September 11? And I'm very much aware of the fact that the Phoenix memo and the Rowley letter includes suspicions of terrorist activity that were based in part on ethnicity.

MUELLER: I think I've seen indications of concerns about taking certain action because that action may be perceived as profiling. The bureau is against--has been and will be against any form of profiling.

The new guidelines address individuals, not members of a particular group and not members of a particular political persuasion or anything along those lines. The new guidelines look at individuals and groups of individuals who may be--and the changes--who may be contemplating terrorist activity.

HATCH: Whether or not they're religious activities?

MUELLER: Whether or not it's religious. Whether or not it relates to any particular religion, whether or not it relates to any particular country.

HATCH: Let me first state, Director Mueller, you've publicly commented on both the Agent Rowley letter and the Phoenix memo, suggesting that their contents underscore the need to reorganize the FBI, both structurally and culturally. Now, can you specifically address how your proposed reorganization plan addresses the particular issues raised by Special Agent Rowley in the FBI's handling of the Phoenix memo?

MUELLER: I think that I have based--both the Phoenix EC and the Rowley memo point out a deficiency that I have spoke to when I was before this committee on May 8, and that is, our ability to gather intelligence information, snippets of information from a variety of various investigations around the country and pull them together, analyze them, coordinate that analysis with the CIA or the DIA or NSA or other agencies who may also have snippets of information, and then be better able to disseminate the results of that analysis back to the field so that appropriate action could be taken.

I've said before that the procedures should have been in place so that the Phoenix memorandum went to the CIA and that the Phoenix memorandum was made available to those in Minneapolis in the determination as to whether or not they had sufficient evidence to have the FISA application approved.

What we have done since then is taken a variety of steps to assure that information like that comes up higher in the organization, that it is disseminated across the various organizations; for instance, my briefing pack--I get a briefing book every day. It's about an inch, inch and a half thick. And most of the distillation of that goes to the CIA. I'm briefed by the CIA every day on what the CIA has.

The procedures in place on the FISA has changed somewhat. To the extent that there are concerns in the field about whether or not we have sufficient information, if there's a belief that we do not have sufficient information, it goes to the new head of the Counterterrorism Division and ultimately to me. I get briefed every day on the status of our FISA applications to determine whether or not we are being aggressive enough, whether or not there is other information about there to determine whether or not we should go forward.

What would be helpful, what we need, is argumentation of our analytical program because there are torrents of information coming in daily and also the argumentation of our technology, to which I have spoke at some length.

HATCH: Thank you.

MUELLER: Thank you.

HATCH: Mr. Chairman, my time is up. I happen to be also on the Joint Intelligence Committee that is meeting at the same time, so I'll have to try and alternate between the two meetings. I hope you will forgive me for that.

LEAHY: What we're going to do is go now to Senator Kennedy. We'll then go to Senator Grassley. But when the vote occurs, once whoever's asking questions finishes his questions, we will then recess so that we could all vote and then come back quickly thereafter.

Senator Kennedy?

KENNEDY: Thank you. Thank you very much, Mr. Chairman.

Thank you, Director Mueller, for being here this morning.

Obviously, no challenge we face today is more important than dealing effectively with the terrorist threat facing the nation. Reform of the FBI is an essential part of meeting that challenge.

In relationship to the September 11 attacks, the FBI's been criticized for failure to act on the information it had and to coordinate effectively with other agencies. To your credit, you've acknowledged the existence of serious problems and have committed yourself to addressing them. I'm sure you agree that we must do so in a way that preserves the basic constitutional rights that are the heart of our democracy.

On September 11, the Justice Department arrested and detained more than 1,200 Arab and Muslim immigrants. Yesterday the Justice Department unilaterally announced it will require tens of thousands of Muslim and Arab visa holders--students, workers, researchers and tourists--to register with the government, be fingerprinted and photographed. INS inspectors will apply secret criteria and their own discretion in deciding which visa holders will be subject to this registration requirement.

I know the FBI's been recruiting, as agents, U.S. citizens who are Arabs or Muslims. This service is critically important to our fight against terrorism. I'm very concerned, however, the Justice Department's post-September 11 policies with respect to Muslims and Arabs will seriously undermine your recruitment efforts.

In particular, I'm troubled by the visa holder registration policy announced yesterday. Your agency is expending valuable time and resources to recruit these U.S. citizens in our Arab and Muslim communities, at the same time the Justice Department is photographing, fingerprinting and registering their law-abiding siblings, cousins, visiting the United States.

KENNEDY: So what impact do you think these policies will have on the Arab and Muslim communities in the U.S., if you're holding job fairs in the morning and fingerprinting them in the afternoon?

MUELLER: Senator, if I might, going back to what we had done in the wake of September 11 in the course of the investigation, immediately after September 11, we understood that the first thing we had to address was whether or not there was a second wave of terrorists out there who may conduct the same or similar terrorist attacks. And immediately what we did was to determine everything we could about the 19 hijackers, how they got their tickets, where they lived, where they went to flight schools, and immediately came up with individuals who had information about them whom we wanted to interview.

In the course of those interviews, we would find that a number of individuals of all religions, from a number of different countries, would fall into one of three categories. One, there may be an individual who is a subject of federal, state or local charges, and had not been arrested, and we would detain them. There would be an individual perhaps who was out of status with Immigration and would be detained by Immigration. And then there is a third, a handful of individuals who were detained pursuant to material witness warrants issued by judges.

We were not looking for individuals of any particular religion or from any particular country. Each one of those individuals detained was interviewed because we had predication to do those interviews.

Now, turning to the initiative announced by the attorney general yesterday, my understanding is that there is a mandate from Congress to institute entry and exit precautions. My understanding is what was announced yesterday is in part responsive to that...

KENNEDY: I'd like to go over--I'm familiar; I was very involved in that legislation. On the board of security as well as the immigration. And I want to get your references on that, because I'm familiar with it. And if you're relying on it, I'd like to know specifically what that authority is in there.

We looked through it last night again in anticipation of this kind of response. And I'd like to get that from the department at another time.

MUELLER: I am not familiar with it myself. But we will provide that, Senator.

But I will say if I could that it is critically important that we do a better job of--we are a very open country. And we want to stay a very open country. But we have to do a better job of knowing who is coming in our borders, where they are within the United States when they're here, and when they leave. And that is one of the areas that we just have to do a heck of a lot better job at. And I believe the proposals yesterday are addressed to that concern.

KENNEDY: Well, one of the most important, which we passed with bipartisan support, included that the CIA was to share information with the FBI in granting these visas, which they never did in the circumstances before, and have commonality in terms of the computers using biometric information. We're working on that, and want to work with the administration on it. But I want to--the relying on what we did in this--what the department did yesterday, relying on that legislation, is something that--but let me continue.

Is it true that none of the 1,200 or more Arab and Muslim detainees that after September 11 were held, were charged with any terrorist crimes or even certified under the Patriot Act as persons suspected of involvement in terrorist activity? I understand the FBI's still conducting clearances in a small number of these cases. But hasn't the overwhelming majority been positively cleared by your agency of any involvement in the September attacks? In fact, weren't these detainees only charged with technical and minor immigration violations?

MUELLER: Well, I think the violations cut across the board. There were some that were charged, I believe, with...

KENNEDY: With terrorism as distinct from immigration violations. I think I'm correct if I say that they had not been associated--links with the terrorist acts.

MUELLER: Well, a specific terrorist charge of somebody who was going to or had committed a terrorist act, no. But there are a number of persons who have been charged with facilitating either the hijackers, or lying about their association with the hijackers or other terrorists.

KENNEDY: See, a part of yesterday's activity is that you understand, in order to get the visa, extensive review and investigation has to be done before the visa is ever going to be granted. And that should be the result of FBI and CIA information, before the individual is even granted the visa. So investigation has been done.

And when we have follow-on procedures when they come to this country, so that we have biometric information and know that that person is there. And there is discretion, obviously, even on the entry officer, about how they're going to treat it.

And now you add this other, kind of, layer of fingerprinting. And we are trying to understand what the basis for that, since there's been an investigation of these individuals for visas in the first place.

KENNEDY: And that we want to try...


KENNEDY: The question as I think you've mentioned this morning about the focusing and the attention on taxing the agencies' resources in the round-up and detention, and now the registration, of vast numbers of Arabs and Muslims--an effective investigative technique, or is it wasting the law enforcement resources?

It has at least impressed many people that the problem hasn't been so much the collection, it's been in the analysis of information by the agency. And we see in response to that kind of gap a great deal more of outreach which, in a number of instances that really threaten the Americans' rights and liberties as a matter of concern. I don't know whether my time is running down, whether you make some brief comment about it.

You're very clear, you know, in your confirmation hearing about these values and a very powerful statement which I believe is your view.

MUELLER: And it is still my view. I still believe that we have to protect the freedoms that we have in this country that are guaranteed by the Constitution, or all the work we do to protect it will be at naught.

But there are things that we can do well within the Constitution that will assist us in identifying those amongst our midst who wish to kill Americans. And to the extent that within the Constitution we have a greater capacity to address the threat against the American public, we're asking Congress to, with us, help us meet that challenge.

KENNEDY: Let me just in a final area--and I'll follow up with written questions about the changes in the FBI guidelines on the use of confidential informants. As you know, very, very well a terrible scandal with the Boston FBI office lead to the important changes in how the FBI is going to handle these confidential informants.

And these reforms were adopted only two years ago, and it's critical they not be watered down. And I know you're very familiar with that situation, in the real scandal of how FBI agent handled these informants, and the corresponding steps that were taken so that we weren't going to have these kinds of abuses in the future. And now, there's certainly a good deal of concern, I know up our way, about whether we are going to be opening up the Pandora's Box on this. And I know you're very familiar both with the challenge that we had up in Boston and the change in the rules, and also the current changes.

Could you comment about how you think that these changes here will not open up the door to kinds of abuses that we've seen recently?

MUELLER: I am familiar with the circumstances of what happened in Boston, and it was not a good chapter in the bureau, and that's an understatement. And I participated in the development of the--and change of the informant guidelines to address the situation that you have up in Boston.

The minor modifications that have been suggested to those guidelines in my mind do not in any way undercut the efficacy of those guidelines in addressing the kind of circumstance that happened up in Boston.

But also, within the organization, we have to to implement the procedures, particularly in our inspection process, so that we just don't go out and look at paper, but we look at what's represented by the paper. Too often our inspection process failed, and our inspection process should have picked up something like that, but it did not in the past.

So we have the guidelines, and we are looking at, and will look at our inspection process to determine how we can do a better job in assuring that this kind of circumstance does not happen again.

KENNEDY: I want to thank you very much for your appearance here, and for your response.

LEAHY: Thank you.

Senator Grassley?

GRASSLEY: Thank you, Mr. Chairman.

And thank you, Director, for coming.

LEAHY: If the senator will hold for just a moment, I have a number of items that we'll place in the record at the appropriate point.

Senator Grassley?

GRASSLEY: Anyway, once again, thank you, Director Mueller, for coming, to discuss a lot of important issues we have before us: the failure of the FBI to recognize warning signs of terrorist attacks, the cultural problems that hinder FBI's ability to be a top-notch agency preventing terrorism, new reorganization plan that has some problems.

But last, but not least, later on, as we will this afternoon, to hear Coleen Rowley, who is one of the reasons that we're here. Special Agent Rowley, as we all know, has come forward on major problems with the FBI's handling of terrorists, specifically the Moussaoui case, and spotlighted some general flaws in the culture. Her courage, patriotism, integrity will help the FBI improve, even if the revelations are painful or embarrassing. In fact, I think she already has helped the FBI, and I think you've indicated that to some extent.

I want to note, Director Mueller, as maybe I've said so publicly that when you thanked Agent Rowley last week in your news conference it was the first time I've ever heard any agency head, not just an FBI head, publicly acknowledge even the existence of a whistleblower, let alone thank that person. So I commend you for doing that.

Along the lines of this issue that Senator Leahy's already addressed, but as the author of the Whistleblower Protection Act and co-sponsor of an FBI reform act with Senator Leahy--by the way, which contains the central protections for FBI whistleblowers, hopefully along the lines of things that Mr. Fine would approve of--I appreciate your assurances that Coleen Rowley will not be retaliated against in any fashion, because of her letter to you or her testimony before Congress.

And I say any fashion, because whistleblowers are often sent out of the way posts or given less than desirable work or given no work at all, as I found in the case of the Defense Department where people just give up and quit. And I trust that your assurances will extend to any form of retaliation.

Before you say yes or no to that, I was really depressed with the attorney general on Sam Donaldson's program when he had to be asked three times if she would be protected. And finally he said she would not be dismissed.

The issue isn't dismissal. Very few whistleblowers are dismissed. They are retaliated in ways that it's very difficult to prove. And we've got to have people, like the attorney general, saying that whistleblowers are going to be protected according to law. I'd like your response.

MUELLER: I absolutely believe the attorney general believes that. And I reiterate the assurances I gave to Senator Leahy.

My own view is that, you know, we should not be the institution. That when there's an allegation of retaliation we, the FBI, should not be the institution that looks into it. I looked to Mr. Fine to look into it and evaluate and see if there is any veracity to it.

But in terms of putting out the message that I want people to tell me what's happening wrong, what is wrong in the organization, institution, I want the suggestions. I have tried to do that.

But I will reiterate, as I said before, the assurances that I gave in response to the question put to me by Chairman Leahy.

GRASSLEY: I don't think Coleen Rowley's got any concern. But I'm not concerned just about her, because down the road Congress has to depend upon that form of information, as you are willing to say you're willing to depend upon it.

MUELLER: I do, too. I mean, I need that information myself. I understand that it should not--I mean, I'll tell you that it should. I want that information so that I can change what is wrong in the institution.

GRASSLEY: So it's not a case just to protect an individual, economically or professionally, it's to keep an avenue of information open. Thank you.

I'd like to ask you about what some people see as redundancy and more bureaucracy at headquarters or maybe in organization, generally. You mentioned the National Joint Terrorism Task Force, in part, for information sharing. But you've already set up an Office of Law Enforcement Coordination. I certainly have concerns about sufficient information sharing and coordination. It's a problem you have to deal with.

But it also seems to me that first line of responsibility for accomplishing information sharing and coordination should be the special agents in charge that we should hold them accountable.

GRASSLEY: In addition to these new offices that you've set up, you formed the Office of Intelligence for analysis; you will create flying squads; you already have the Strategic Information Operation Center to coordinate for emergencies; and there's this Counterterrorism Center was staffed from the FBI and CIA. And maybe I'm missing some other new or existing groups, but I'm going to stop there. But I agree with some of these, especially the Office of Intelligence.

So three questions: Can you explain to me what each of these groups--and please don't go into tremendous detail to take up too much time--but they'll do or are doing? And can you explain how they won't be duplicating each other's work? What groups will coordinate information sharing within the FBI and other agencies? And three, what responsibilities then do you see the special agents in charge for information-sharing and coordination? And could you start with three?

MUELLER: Well, let me see if--I'll start with three.

The special agents in charge are supervising in each of our divisions the joint terrorism task forces. On those task forces, there are other federal agencies and other state and local agencies in that region. We, each day, push out information to them to be shared in that vehicle, and that is a very important vehicle to share information at the local level.

What we have to do a better job of at headquarters is taking the information that comes in from our agents in the field and acting on that information, whether it be action through the Coast Guard, action through the FAA, action through other agencies, but also have those other agencies with the ability to plumb their databases.

The joint terrorism task force headquarters replicates what we did in Salt Lake City. In Salt Lake City, we had a fused intelligence center where you had one set of computers with an intranet so if a question came in from a trooper of Salt Lake City or a Utah State trooper about an individual, immediately that'll be put on one of the sets of computers to each of the representatives of the CIA, the DEA, the Immigration Service. And they would go to their own computer and look in their databases and pull up that information and put it out immediately to the person who needed to get that response.

That is what we did in SIOC, as you point out, the Strategic Information Operation Center, in the wake of September 11. But since we have run through all those leads, we have dropped back down and have not put that back up. We are doing that. That's the joint terrorism task force back at headquarters. And that is critically important to our ability to share information and gather information from the various agencies.

The Office of Intelligence is the analytical piece that we were lacking in the past to bring in the shreds of information, coordinate that information with the CIA or other entities, and make certain that we are looking and establishing the patterns that need to be addressed. And then after that we have to develop a way of addressing those patterns, whether it be flight schools or crop-dusters or threats on reservoirs or what have you.

And so, it's important to get the intelligence in to the Office of Intelligence, develop those patterns, evaluate the threats, evaluate the credibility and then pass it on to people who will act on that intelligence to protect the country.

GRASSLEY: I wanted to talk about your allegation of resources. And I'm following what I believe is my understanding of your reorganization plan. And I guess I started with a premise that maybe it doesn't go far enough in moving agents into counterterrorism. With the number I've seen, it seems to me that it would be 25 percent or less of the FBI agents will actually be working counterterrorism when the reorganization is done.

You say the FBI is the lead agency for counterterrorism and I believe that, and everyone knows that preventing future attacks is our number one priority. It's even the number one focus on the top ten list in your testimony today.

But what sort of reaction do you have about this priority of stopping terrorists when less than 25 percent of the FBI total numbers of agents are working on that? Could a reasonable person infer from this that car thieves, gangs, kidnappers pose more of a danger than terrorists because the number of agents working those crimes?

We have the Drug Enforcement Administration, for example, to do more narcotics than you plan to get rid of. State and local police can handle many bank robberies. We have inspectors general on government fraud. We have the EPA's Criminal Division for environmental crimes and we have Customs and Secret Service.

I think it's coming to the point where Congress is at fault for some of this in maybe giving too much responsibility to the FBI. That'll have to be addressed not by you, but by us. But Congress may need to cap money for new agents until the FBI can get serious about terrorism and get rid of jurisdictional duplications with other agencies. If the FBI needs additional agents for counterterrorism then, at that point, we can provide them.

So could you tell me if you're done moving agents to counterterrorism, are you going to move more, and if you're not, how will you react to a congressional proposal to narrow the FBI's jurisdiction so it can truly concentrate on the mission of preventing terrorism?

MUELLER: Let us say since September 11, I've had several conferences with the SACs, special agents in charge, to determine what kind of shift in resources was necessary to address counterterrorism. My statement at the outset is that--and was to them--"that counterterrorism comes first. If you have a threat within your division, if you have a lead that must be pursued, that comes first before any other program."

I go to them and say, "OK, in your particular division, what additional resources do you need to address counterterrorism?" And each of the SACs would come back to me, "I need 10," "I need 15," or "I need 20." And then I go back and say, "OK, your division is unique." San Francisco's a little bit different than Des Moines in terms of what is necessary. What programs should we take those agents from? And we looked at it from an overview to see what is necessary for national strategies and made the recommendation that we ought to shift these resources at this time permanently to address counterterrorism needs.

Now, this is a work in progress. I don't know, three months down the road, we may need, in some division, additional resources because something has popped up. Part of my program is to be more flexible and agile because, as I've seen these problems pop up in a particular community, we need the resources to address them for a week or two weeks or a month and I don't want to permanently put the resources there. I mean, if we need Pushtu translators in a particular place, we'll push them in to resolve a particular threat and then they'll go back to their home station. So we want to be more flexible in sending the resources where they're needed across the country.

In terms of ultimately where we will fall out as to what we need in terms of agent manpower to address terrorism, I do not know where we'd be three months or six months down the road. What I need to see and make certain is that we are addressing every piece of information, every lead that potentially could lead us to preventing another terrorist attack. And each of the SACs, I believe, understands that.

GRASSLEY: What about the jurisdiction part of my question? I don't think you touched on that.

MUELLER: I'm always willing to look at the jurisdictional aspects of the FBI. I have--in the course of working at the programs that are going to be affected by the shift of resources, I've talked with the DEA, for instance, and we ought to eliminate in the narcotics arena those cases where we overlap. Cartel cases with DEA, for instance.

On the other hand, in particular parts of the country, public corruption is intertwined with narcotics trafficking. And in my mind, we should not leave the field when it comes to public corruption that may be intertwined with narcotics trafficking.

So what I've tried to do is look at particular areas and see what makes sense in terms of other agencies picking up the responsibility but not leaving the field where we have particular priorities.

Thank you.

LEAHY: At this point, the vote has begun. We will recess. When we come back, I will recognize Senator Kohl and then Senator Specter. This will give a chance for everybody to take a quick break.

Thank you.

We stand recessed.


LEAHY: Thank senators for coming back. We're going to go to Senator Kohl.

Just so you know, before we finish, Mr. Director, I'm going to ask you a question about how the new proposal the president is going to make about a homeland defense agency, how that affects your jurisdiction.

But, Senator Kohl, go ahead please.

KOHL: Thank you.

Director Mueller, The Washington Post this past Sunday ran a front-page story on the complete absence of pre-boarding screening for passengers on chartered aircraft. Today, anyone with a high enough credit limit can charter a 747, bring whomever they want on board, bring whatever they want on board, including weapons, and repeat the horrific events of September 11.

Now, after much, much prodding from my office, I understand that the Transportation Security Agency is about to issue a regulation requiring those passengers who charter very large aircraft, over 95,000 pounds takeoff weight or about the size of a DC-9, to undergo pre-boarding screening just as a passenger on a commercial airline would.

And I'm glad that they're considering taking at least this step, but I want to ask you a few questions about regulation of charter aircraft from the perspective of the administration official, which you say are--and you are--most responsible for preventing another terrorism attack on this nation.

Do you believe that we are at so little risk of a terrorist attack using a chartered aircraft as a weapon that we do not need any screening of chartered aircraft passengers and their carry-on luggage on chartered planes smaller than DC-9s? For example, a fully fueled, 91,000 pound Gulfstream 5 has significantly more explosive power than the largest conventional bombs used today by the U.S. military.

In other words, even under the new TSA regulations being proposed, we are making available to terrorists still a bomb bigger than anything that we dropped on Afghanistan.

As the lead government official in charge of preventing terrorism, are you prepared to make sure that this threat posed by chartered jets less than 95,000 pounds is addressed? I understand TSA writes these regulations, but I'm asking you to take responsibility for this or to make a public statement, if you cannot address the problem, that the administration is keeping you from addressing this issue.

MUELLER: Well, I can't say the latter, because the administration certainly is not keeping me from addressing the issue, Senator. It is an issue that has been raised ever since the events of September 11 in discussions with homeland security. And I know the administration is concerned about and has undertaken steps to address that which would be a concern in the wake of what happened on September 11, not only private jets or chartered jets, but also other forms of jets that are shipping not passengers, but merchandise or freight and the like. And there has been an ongoing discussion and efforts made to address the security concerns across the broad band of other aircraft that could be considered a risk.

I am not familiar with the details. I'm not familiar with the regulations for the...

KOHL: I appreciate what you're saying, and I want you to know that we have talked to Mineta, Magaw, Ms. Garvey, Rumsfeld, as well as the president, and we've not gotten a good answer. And you're not giving me a good answer.

Now, you say that you and the FBI have a particular special responsibility today, and that is to prevent another terrorist attack. I am bringing to you a clear and present danger, which I do not think you would deny, that chartered aircraft today can be obtained by virtually anybody, they can board these aircraft without any screening. Now, I'm sure you understand the implications of that.

Are you prepared to say that you will address it, and if people in the administration just say, "Bug off," you will announce that?

MUELLER: I absolutely am prepared to address it. I have in the past had discussions, not specifically addressing it, but yes, I am prepared to address it and I will follow up on it and will be back to your office.

KOHL: In the very near future?

MUELLER: Yes, sir.

KOHL: I do appreciate that.

Mr. Mueller, the FBI has requested tremendous increase in its budget and its staffing, as we know. You argue that the war on terrorism requires more and better equipped agents. For fiscal year 2003, the administration's proposal for the FBI budget is $4.3 billion. That's $700 million to $800 million more than this fiscal year and more than double the FBI's budget from 10 years ago.

In terms of personnel, the FBI has almost 2,000 more authorized positions for fiscal year 2003 than this year and 6,000 more than 10 years ago.

And yet it appears that the FBI had information enough and resources at its disposal to possibly unravel the terrorist plot before September 11. The Phoenix memo, the Minneapolis involvement and the CIA's information were available but the pieces were never put together in a way that might have prevented the attack. Had the FBI been totally alert and had the FBI used its current capabilities to the best of its ability, there was at least a very good chance that the terrorist plot could have been uncovered.

Unless and until the resources that you have at your disposal are used effectively, I'm sure you'd agree it won't matter much how much money or how much personnel we throw at the problem. Instead, we'll just be headed for a bigger bureaucracy that is, by definition, more unwieldy and less able to respond.

Mr. Mueller, is money really the solution or even part of the solution to your problems? Aren't you worried that you'll be spending so much time reorganizing and spending money that you won't use your current resources smarter, but end up instead creating a more bloated bureaucracy?

MUELLER: The request I have to Congress is to redirect resources, agents, to address counterterrorism, and that is done after looking at our organization and look how it could be better focused to address the problem at hand, number one.

Secondly, the money that has been given to us, in substantial part, will address two of our problems, two of the problems that came to light in the events prior to September 11.

Number one is technology. And, yes, we have not done a good job in the past taking the money that Congress has given to us and put it into the appropriate technology. I have brought in and am in the process of bringing in individuals from outside who will help us to utilize the monies that Congress has given us to upgrade the technology in ways that actually will do it and accomplish what we need to do.

Secondly, the analytical capability: I have a plan to upgrade our analytical capability. I have briefed this committee and Congress on the various aspects of that plan to upgrade our analytical capability. And I do believe that those are resources directed specifically at the problem we have to address, and it's incumbent upon me to get the analysts who are well educated, who are well trained, who have the various language skills, who have the background to do that analytical capability that we have not had in the past.

What we have, we have excellent, superb investigators who do a terrific job in gathering the information and gathering the information so that it can be translated into further action. What we need is the analytical capability, the technological capability to maximize the capabilities of those agents that are out there doing the day-in, day-out investigations.

KOHL: All right. Well, as a follow-up to the question, in the final report after Ruby Ridge investigation of '95, one of the recommendations that this committee made was the creation of a FBI civil oversight board. This group would act like the one that oversees the CIA and other intelligence organizations.

The board would be appointed by the president and would be capable of objective criticism of the activities of federal law enforcement, and also receptive to external criticism. But it would be dedicated to strong and effective federal law enforcement, obviously.

Our concern then was the same that as that we have today. There is no way, Mr. Mueller, to measure the success or the failure of the FBI. And while we respect changes you are making to the organization, we will likely not be able to objectively evaluate its performance.

Can you comment on why an oversight board was never created, and whether you believe one could be constructively created today?

MUELLER: This is the first I have heard about the possibility of an oversight board. I will tell you that I am bringing persons from the outside, from business, for instance, to bring in separate views. I have an individual, called Wilson (ph)--named Wilson Lowery (ph), who I'm bringing in from a long time with IBM who was with Lou Gersner (ph) when he turned around IBM, who is coming in as a special assistant to help us get through the changes that we need to get through.

I also had persons that I look to on the outside to give me a view--respected persons in the community, whether it be principally the intelligence community because this is the area we need help as to what to do. I'd be happy to consider the implications of some form of review board down the road.

KOHL: My time is up, but I'd simply comment that you appear to be saying that having people take a look at what you're doing from another perspective more distant than the everyday involvement is not a bad idea.

MUELLER: I think it's a very good idea.

KOHL: And it might be a good thing for the FBI to have that kind of an oversight committee or board to look to. Thank you.

Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Kohl.

And going in the rotation, Senator Specter?

SPECTER: Thank you, Mr. Chairman.

Thank you, Director Mueller, for coming in on a public hearing and making Agent Rowley available. I believe that the public hearings are indispensable if we're to have effective oversight. I think otherwise it's like a tree falling in the forest: Nobody hears it, there's no sound.

When this committee did oversight on Ruby Ridge in this room, I think it was very effective, and it is my hope that, with the talents that we have on this committee, we can be of assistance to the FBI and the CIA.

My own professional judgment is that it wasn't a matter of connecting the dots before 9/11, I think there was a virtual blueprint. I think had all of it been put together, or leads followed that could have been put together, I think there was a distinct possibility of preventing 9/11.

I want to cover with you four subjects. In the absence of an opening statement, I want to review a number of items and then ask you to comment, after I've covered the four of them. Because if we get into dialogue, I'll never get beyond one or two.

The Rowley letter states that in determining probable cause, she was looking for a 51 percent likelihood, but the U.S. Attorneys' Office was looking at 75 to 80 percent. Now, even a 51 percent standard is not correct. You don't have to have more likely than not or a preponderance of evidence, and that was made explicit by Justice Renquist in Gates (ph) versus Illinois. So, we've got to take a look at what's going on these FISA applications as to whether you're looking for more than you have to.

Then this letter from Agent Rowley refers to FBI headquarters questioning whether this Zacharias Moussaoui was the same as the one that they knew about. Zacharias Moussaoui is not exactly a common name like John Smith, and when the Minneapolis office went back to Paris to have the phone books checked, they could only get the Paris book, there was only one in there. But according to Agent Rowley, there continued to be resistance.

So what I think we have to do, and pursue these in other hearings in detail, is what is your bureau looking for on probable cause? Seems to me you have a vastly inflated standard.

Then there's the question of the Phoenix memorandum. When you appeared in this room on July 31, you and I had an extensive discussion about what had been done in the past by way of oversight and the obligation for the director to be forthcoming on oversight. And when that Phoenix memorandum was turned over to the inspector general on September 28--and I'm going to give you a chance to comment on this in just a minute--I think it should have been turned over to this committee.

If we had known about the Phoenix memorandum, we could have made some pretty good suggestions to you. And the investigation wasn't finished until mid-December, and then it was turned over to the Intelligence Committees, but they didn't start to function until mid-February.

Then we have the issue as to your interview yesterday, published on the front page of the Washington Post today. And you are quoted here as saying, "Our biggest problem is we have people we think are terrorists. They are supporters of Al Qaeda." And you're keeping them under surveillance. I'm troubled by this for two reasons. One is, putting people under surveillance is right up to the edge of problemsome.

It isn't quite intimidation because you can conduct a really good surveillance without having people know about it. But it's troublesome to have surveillance unless there's really a good reason for doing so.

And then when you say, "We think these people are terrorists. They are supporters of Al Qaeda," I'm wondering if we ought not to take a look at a definition of prohibited conduct. Crimes are defined by the Congress, and if these people are really menaces and threats, and you say you don't have sufficient resources to follow them all, and I can understand that, we really ought to get the details from you as to what you're worried about.

There's a lot of experience on this panel of ex-prosecutors, people who are investigators. We may need to define a different category of crime depending on what evidence you have.

And then, Director Mueller, I'm concerned about what goes on in your office with respect to how much you can keep track of. On a Sunday show, "Face the Nation," you were asked a question about a chart--whether there was some chart that was referred to in Newsweek. And this is what Newsweek said about it, quote, "To bolster their case, FBI officials have now prepared a detailed chart showing how agents could have uncovered the terrorist plot if they had learned about Ahmel Dahar (ph) and Alsani (ph) sooner, given the frequent contacts with at least five of the other hijackers, there's no question we could have tied all 19 hijackers together," close quote, the official said.

My staff called Mr. Michael Isikoff to ask him if there really was a chart, and to ask him if we could see it, and he declined, and that's his right. And I'm going to take steps to see if the committee would issue an invitation to see the chart. I'm not talking about a subpoena, I'm talking about a chart.

But there are two things which trouble me here. One is, was there a chart which showed a composite picture, as reported here? And secondly, if there was one--I believe you, Director Mueller, when you say you didn't know about a chart. But is this kind of information getting through to you?

Let me ask you for your comments, if I may, to start on the issue of why you didn't turn over the Phoenix memorandum to this committee, and why, when you had been asked about it, you never told the committee that the memorandum had been turned over to the inspector general.

MUELLER: My understanding, from the early days, was that Congress had determined that the Intelligence Committee was going to do the retrospective.

SPECTER: Well, that's not true. That's not true. Didn't happen until mid-February. This is an ongoing, standing committee. And we were emphatic on your confirmation hearings, and of course you and I discussed this privately, and you committed on the record to respect the oversight of this committee on matters of importance. We didn't anticipate the Phoenix memo.

MUELLER: We did have that dialogue, Senator, and that's still in my mind. And my thoughts during period of time were--as I've said on a number of occasions, were directed at doing the investigation, trying to prevent the second wave of attack, in fact, if there was going to be a wave of attack, with the expectation that there would be a retrospective down the road and the expectation that we would turn everything over to that committee.

SPECTER: I respect that and I agree with it. And I took a public position there ought not to be an inquiry immediately after 9/11, because the most important thing was to allow the intelligence agencies to regroup and stop another attack.

But that doesn't go to the issue of turning over the Phoenix memo, at least to the chairman and ranking member. Had they seen it, had we seen it, we might have had some--we would had some very good suggestions for you.

MUELLER: I understand, Senator.

SPECTER: How about the chart?

MUELLER: Well, with regard to the--my understanding, at the time that I answered on the Sunday show, I did not know of a document that met that description. What I have come to find out is that there is a Powerpoint presentation that was prepared by an individual who had used the newer technology, the database mining technology, that we are now using, to show how, if we had had that database mining technology in place at the time, we perhaps could have tied the individuals together. It is not a chart; it is a series of slides showing how this new technology would have worked.

BIDEN: Senator Specter, would you yield for a point of clarification? What did the director mean when he said, "I understand"? You asked him a question, he said, "I understand." I didn't know what the answer--what that means.

SPECTER: I'd be glad to answer that question for you, Senator Biden, but I will defer to the witness.

BIDEN: What do you mean by "I understand"?

SPECTER: By the way, this is on his time, Mr. Chairman.

BIDEN: I am just curious what he means.

MUELLER: I intend to be--in response to which questions, Senator?

BIDEN: The question the senator asked you is why did you not submit the memo to this committee. He gave his explanation what he thought the committee would do, and you said, "I understand", but I thought the question was, why did you not submit this memo?

MUELLER: Because I believed that the retrospective would be done by the Intelligence Committee, and I thought I'd indicated that.

LEAHY: Senator Specter?

SPECTER: Well, on that point, this is the oversight committee of the FBI. You came here for confirmation. You made the commitments to this committee. They weren't constituted until mid-February.

And one of the things which troubles me is that we haven't had a look at this a lot sooner.

But with respect to a slide, if it wasn't a chart--and I think they're indistinguishable technically--is it true, as the report says here, that this detailed chart--strike "chart" and put "slide"--showing how agents could have uncovered the terrorist plot if they put these pieces together; is that so?

MUELLER: I would have to go back and--it is a slide presentation. It's not one chart. It is a series of charts, as I understand it, that shows how the technology could have been used to associate these particular individuals together.

SPECTER: OK, but the composite would have led you to a possibility of preventing 9/11?

MUELLER: I am not certain, Senator.

LEAHY: Well, if it might be helpful at all to the committee, one of the things that we requested, when we had our meeting with David Frasca, and we have a list of things we requested; number 11 on it is the JTTTF charter chronology or Powerpoint presentation. We have been told that parts of it are law enforcement-sensitive. My response is that it could be then looked at in closed session, and that, in fact, I would be happy to do it, and designate one of the members from this side, as Senator Hatch does, and any one member from his side. But I happen to agree with Senator Specter, it's something we should look at.

SPECTER: Well, in conclusion, had the Foreign Intelligence Surveillance Act warrant been issued for Moussaoui, and what we now know by 20/20 hindsight, it would have uncovered a wealth of information had that been done in August, when Agent Rowley submitted it.

And we had gone through these Foreign Intelligence Surveillance Act problems in detail on Wen Ho Lee. We have been on notice as to what went on. Attorney General Reno testified at great length about her turning down the Foreign Intelligence Surveillance Act warrant application. So we have been on notice as to what should have been done, but had that warrant been issued and the follow-up been on Moussaoui, it would have been a virtual gold mine.

But the point is, that all of this is prologue. What we all have to try to do is to see to it that the mechanism is now in place so that if you had this composite of information, it could have been prevented.

The media is always asking, "Who's going to take the blame, who's going to be the fall guy?" and we have no interest in that.

And this committee is going to back you up Director Mueller. Not withstanding the fact that one prominent publication called for your resignation, we are going to back you up. We are just on the job, and we are not delighted with the number of things you've done, but you are the director. If we were to get a new director, it would take weeks, confirmation a long time, and you're experience, but we've got to put these pieces together.

Thank you, Mr. Chairman.

MUELLER: I've tried to address, I believe, some of your current concerns, Senator, for instance on the FISAs. I agree that there are issues relating to FISAs. And as I indicated before, we have changed the procedure; I get briefed on the FISAs every day.

And so to the extent that we have, and we should look back to determine what they were in terms of problems pre-existing 9/11, we are moving in a variety of ways to assure that we address those problems and that this does not happen again.

And the proposal that I had before this committee and before Congress as a whole, is an effort to make certain that we better the FBI, give the FBI agents the tools they need, particularly in terms of pulling together the various pieces of information, so that we can prevent any future attack.

SPECTER: I'd like your comments in writing, Director Mueller, as to the standard 51 percent, 75 to 80 percent. And I've already discussed with the chairman activity pursuing this FISA matter, because we need to get down into the details of it, and lend the oversight and our own experience on these matters, which is considerable.

MUELLER: Thank you, sir.

LEAHY: Thank you.

On these questions of other directors, the director has the confidence of this committee on both sides of the aisle.

And we will continue asking the questions. This committee has an oversight responsibility which we will carry out. It's entirely different than other committees. It's unique, and it's an obligation we have to the Senate, it's an obligation we have to the American people.

The senator from California, Senator Feinstein?

FEINSTEIN: Thanks very much, Mr. Chairman.

Mr. Mueller, I suspect there are times you wish you were on the West Coast, as I do.

MUELLER: San Francisco is a lovely city.

FEINSTEIN: This is a hard place.

And I wanted to say a couple things personally. I think you've come into a very hard job at a very hard time. I can't imagine a worse time. I've had occasion now to see you review your plans for reorganization, I think, three times.

I want you to know that I'm here to support you. I do support you. I think your efforts to change the culture and the organization are very commendable. I may not agree with every specific, but that's irrelevant. I want to see that the American people are protected, obviously consonant with our civil liberties. And I was very heartened to hear what you had to say along those lines.

I also want to thank the chairman, because I think he's exercising the oversight--and I have been reading some of the testimony that goes back to the 1970s, when there was real reason to be concerned. There wasn't the level of oversight that there is today. There wasn't the level of press inquiry that there is today.

We held an oversight hearing, I think less than a month ago, thanks to the chairman, and this may be a little bit rugged on you, but I think it carries out our responsibilities.

I would like to ask for an answer to my letter that I wrote to you on May 7 with a substantial number of questions having to do with the Phoenix memo. I have not gotten that answer yet.

MUELLER: I thought that it had come up last night or would be there with you today.

It is going through a final review, it should be up there today or tomorrow.

FEINSTEIN: Thank you very much. I will look forward to that.

I wanted to concentrate my questions in two areas. One is the FISA procedure, and the second is regional authority versus flying squad.

Let me take the FISA area. It has come to my attention that at least one major case that I won't specify, the warrant never left the FBI. It never went to the Department of Justice, it never went to the OIPR, where the attorneys are.

I've read the--Mr. Freeh's memo of April the 15th which changed the FISA process, I think based on problems that prior FISA warrant requests had that were egregious, let me say, and so he wrote a memorandum that was very complicated, very difficult, I think, to carry out.

There are different impressions of what you intend with respect to the FISA process. One is that applications would be automatically routed to Dale Watson and to you for further review and consideration. I would like you to lay out for this oversight committee the specific process that you're going to use with respect to the processing of a FISA warrant.

MUELLER: Well, let me just go back--the, what they call, I think, the Woods changes that are reflected, I believe, and I am not certain the date, but Mr. Freeh's memorandum, relate to assuring the accuracy of the document that is going to be presented to the court.

And the difficulty we have here is we've got one FISA court situated in Washington, but the persons who are drafting the affidavits and have the information from the investigations are out in the field. And so that is appropriate to assure that there is a certification from the agent in the field as to the accuracy of the document before it goes to the court.

With regard to the FISA process, what we have done since--relatively shortly after September 11, whenever there are issues relating to FISAs relating to terrorism, that are on terrorism, I get briefed on that every morning. I have given directions to Pat D'Amuro, who I put in charge of the counterterrorism division, that if there is an issue there of turning down a FISA and not sending it across the street, then I want to be involved in the decision-making process...

FEINSTEIN: Bob, by across the street you mean to the Department of Justice?

MUELLER: The Department of Justice, yes.



FEINSTEIN: Will every FISA warrant go to the OIPR?

MUELLER: If we believe that we have met the criteria of probable cause, yes.

FEINSTEIN: And you will assess that personally in every warrant?

MUELLER: No, if there--no. Most of them go through. If there is one in which the field says, "We believe you have probable cause," and somebody at headquarters is saying, "No, I do not think you do," then I will be involved in that discussion.

And the way I am currently--how do I want to say--alerted to that discussion is I have in my briefing book every day a piece of paper that gives me the status of those FISAs that are related to terrorism. And there are occasions where I have seen that there has been a hang-up for some reason or another, and I have given direction to let's get beyond that, do this investigation. There are other cases in which, in the course of the daily briefing, I will say, "We ought to go FISA on this." Not criminal.

And so to the extent that the FISA process is perceived to have been held up by persons at the unit or section-chief level, I want to make certain that that is not the case, and that it gets the high-level review in those particular instances where it's appropriate.

FEINSTEIN: Stop here for just a second. To what extent would foreign intelligence be incorporated in the warrant?

MUELLER: To the extent that we have information from the CIA, just in using--or some other agency, it should be incorporated in the warrant. There are no prohibitions to us using that, and we often--not often--yes, often, more than often, we use that kind of information.

What I have to do a better job at is integrating our information with information the CIA, so that we have that information to put it into that FISA application, to get that warrant.

FEINSTEIN: Well, this is an important point. So what you are saying is that if there is foreign intelligence connecting an individual, let's say, to Al Qaeda, that should be included in the FISA warrant...

MUELLER: Absolutely.

FEINSTEIN: ... probable cause.

MUELLER: Absolutely. Absolutely.

FEINSTEIN: Because there are instances where I understand it has not been.

MUELLER: There may well be, but it should be. To the extent any piece of--regardless of where that piece of information resides, whichever agency, and it could be--as you well know, there are a number of separate intelligence agencies in the government. I don't care where it is, it should be utilized, where appropriate, to provide the basis for obtaining the FISA warrant.

FEINSTEIN: So--just quickly go back. So you will receive notice of every warrant. If the warrant is normally being processed, it will go to OIPR, and if it is not, you will personally review it. Is that...

MUELLER: If there is a dispute as to whether or not there is probable cause. What often happens in this case is you will have somebody who is familiar with the FISA accord talking with the agent who is drafting it and saying, "Look, we need a little bit more here, we need a little bit more there."

There are occasions since September 11 where there has been somewhat of a dispute as to whether or not we had enough, and those are the occasions when I will weigh in and push it forward. And to the extent it is necessary to discuss it with OIPR, I or persons close to me have had those discussions also.

FEINSTEIN: Right. Now, as one who sat through both the Waco and the Ruby Ridge hearings here, I think it may well be that a false impression was given. And that is that, because we were concerned, or some of us were concerned, in the instance of major event such as Ruby Ridge or Waco, the central administration didn't take sufficient responsibility but too much was placed on the SAC. And I have felt as I have watched this since that time, that that may well have had a chilling effect on regional offices' enthusiasm to move ahead in a vigorous way in certain cases.

Having said that, I would be interested if you would spell out where your flying squad makes some of these determinations as to when an investigation would ensue, and how much authority the regional head has in your 56 offices to really now say, "OK, we've got this information about so and so. It's time we take a good look, you know, assign people and go ahead and take that look." Where...

MUELLER: Let me talk about two things in terms of the role of headquarters versus the field in counterterrorism.


MUELLER: We are an agency that has been built up with 56 separate field offices addressing crimes that, from the beginning, have generally been generated out of the conditions in a particular city or a state. When you look at the war on terrorism, it is a nation--we have to protect the nation.

We have to take pieces of information from Boston, or Florida, or San Francisco, and utilize those pieces of information in a predictive way. And there's got to be somebody accountable for getting that information together and then taking action on it. And it cannot be the SAC of a particular office. And so, headquarters has to have a management and supervision role to assure that the national program is maintained, and that we are, as they say, tying the dots together.

The flying squads will be individuals at headquarters who develop expertise in, say, Al Qaeda. If you have a case such as Richard Reid up in Boston--you will recall, he is the individual who was on the plane from Paris to Miami and had explosives in his shoes, and the very vigilant flight attendant saw it, and he was arrested and taken to Boston. Well, that particular case has information in it relating to Al Qaeda, with regard to Reid. They are putting together the facts for that particular case. And the flying squads, had I had them in place, would have had maybe two individuals that would go up and support that prosecution, that further investigation.

They would bring expertise to the field. They would be under the control and reporting to the special agent in charge, who is in charge of that particular investigation. And once the Reid prosecution or investigation is over, they would bring back to headquarters that expertise, that experience that they learned there.

So it is to supplement the, on the one hand, the agents in the field doing the job they do in terms of their investigations, and on the other hand, be a resource for the field in terms of expertise that can be made available to the field.

FEINSTEIN: Does the agent in charge have to have Washington approval to institute one these terrorist investigations?

MUELLER: Prior to the change in the guidelines of last week, yes. The change of the guidelines last week give the authority, the special agent in charge, to initiate the investigation.

There is a reporting requirement. It has to be reported back, so that we know what particular investigation is being initiated and we can put an investigation into Boston together with perhaps an investigation in San Francisco or Los Angeles.

FEINSTEIN: Thank you, Mr. Mueller. My time is up.

LEAHY: Senator Kyl.

KYL: Thank you, Mr. Chairman.

Mr. Fine and Director Mueller, thank you very much for being here today.

Mr. Fine, I am sorry you haven't been afforded the opportunity to say much beyond your opening statement, but I appreciate your being here.

And Director Mueller, you've spent a lot of time with us in the last two or three weeks. We're asking you to help us fight the war on terror. We're also trying to get a lot of information from you. And I appreciate--you're probably burning the candle at both ends, and I very much appreciate both what you do and what the dedicated people at the FBI do.

I want to give you an opportunity to clarify something, and perhaps add a little bit to it myself, relating to the chairman's opening statement, in which he questioned the restructuring that you announced, the restructuring of the FBI and related changes in the FBI. It seems to me that that kind of criticism is inconsistent at best, and I would like to set the record straight to the extent I can.

On the one hand, people tend to criticize the FBI for not acting or not acting quickly enough to correct deficiencies that you found when you came on board roughly a week before September 11, and then on the other hand, you get criticized for initiating the reforms. Sometimes it's not actually criticism, as the chairman said. He said, "Maybe these reforms are right, they may be right, but the process was wrong, because we weren't consulted, we the Congress." Senators love to be consulted.

It seems to me there are two things wrong with that. First is, we were consulted. I counted up how many hours I spent with you two weeks ago, that you had to spent up here on Tuesday, Wednesday and Thursday afternoon. It was over 11 hours that I spent, and I left a couple of the meetings early. You had to be there the entire time. As a member of the Intelligence Committee, and then the next day the Judiciary Committee, and then the next day you afforded the opportunity for all senators to brief you and ask you any questions--or excuse me, for you to brief them on these restructuring programs and ask any questions.

Somebody said, "How much time do you have?" You responded, "I have all of the time you need." And after about 2 1/2 hours, as I said, I left the meeting, you were still there. It was beginning to wind down. But everybody had a fully opportunity to ask questions. And then there was the actual announcement.

Now, you also said that you did not want to announce the changes at that time because you wanted to consult with the appropriators, and I have verified you did, in fact, consult both with the House and Senate appropriators.

So I think the first point is that there has been a full opportunity for members of the Senate to talk to you about these recommendations that you told us about two weeks ago.

And secondly, it doesn't seem to me that when you talk about restructuring the FBI and reassigning the agents and creating this team that you just talked about and making other internal changes, that this is the stuff of legislation for us to be micromanaging. It's, rather, the stuff of management that we expect you to do. We have an oversight role but not a micromanagement role. And I don't think we can ask you to expeditiously reform the agency on the one hand, and at the same time be upset that you don't tell us everything you are going to do far in advance or seek our preapproval of it.

And I want to conclude this point by saying that, if you did, I'd object anyway, because Congress has a sorry record in this regard. It's understandable, because there are 100 of us, there is one of you, although you have got a big agency to get your arms around.

But for years, and I've got the record here--I chaired this terrorism subcommittee and Senator Feinstein was my ranking member. She is now a chairman. I count over 20 hearings that we held on the subject of terrorism, going back to 1997. And we had your predecessor, Louis Freeh, testify on at least two or three of those occasions. He asked us over and over again for authority, that Senator Feinstein and I put in amendments and legislation and amendments to the CJS appropriations bill. Could we get our colleagues to pass it? No.

After September 11, miraculously, everybody was the parent of these wonderful ideas, and is now taking credit. Fine. But it takes something like September 11, unfortunately, to get a cumbersome body like Congress, frequently, to act when it is the least bit controversial. And some of these things were controversial because civil liberties groups and others were concerned about whether or not they went too far. Well, after September 11, we realized we hadn't gone far enough.

So I, frankly, without going into more detail want to complement for acting and, in the brief amount of time I may have left, ask you two questions.

One, I would like to specifically elicit your views--and if you would pass this on to the attorney general, his views--about the legislation that Senator Schumer and I introduced yesterday, that would make one small but very important amendment to the FISA warrant definition of foreign agent to solve the problem you've identified, that a lone actor out there, a person that you cannot necessarily tie down as a member of the Al Qaeda organization or Hezbollah or some other group or working directly on behalf of the specific foreign government, all you'd have to do is prove that that person was a foreign individual, and you have probable cause to believe that they're involved in terrorism.

If you want to comment any further on that right now, fine. Otherwise, I'd very much like to get the Department of Justice's and the FBI's recommendations with respect to whether we should proceed with that legislation.

MUELLER: I understand it was put in maybe yesterday or the day before.

KYL: Yes.

MUELLER: And as I indicated before, this is a problem and we're looking for solutions to address this problem. And I know that the department will have the formal opinion on that, but we are looking for a solution for this problem.

KYL: Great, I appreciate that.

I would also like to raise one other point. I'm very concerned about leaks and the effect they may have on your work and the work of your agents. When we had Agent Williams here a couple weeks ago and talked about the Phoenix memo, there was quite a bit--or there was some discussion, in any event, about the effect of the leaking of that particular memorandum on possible investigations.

And without getting into details that themselves would compromise investigations, I'd like to have you at least remind us of the problems that can be created in ongoing investigations when material like that is leaked.

MUELLER: Well, it has an adverse affect on the investigation, from the perspective of informants, persons willing to come forward. It may well alert subjects of the investigation to scrutiny. Although names are not mentioned, there may be other identifying data that is released, that may put the person on alert that the government is looking at them. And consequently, that type of information, if out in the public, could undercut and adversely effect the ability to do the job.

KYL: Now, I just urged my colleagues, as part the Intelligence Committee investigation and also the extent that this Judiciary Committee has oversight of the FBI and the Department of the Justice, that we have an obligation not to make your job or the CIA's or other intelligence agencies' jobs more difficult.

Finally, in some of those sessions, we also heard from agents in the field that even some of the reforms that we had instituted in the USA Patriot Act, while very well-meaning and very helpful, were not necessarily working out exactly as we had hoped, and that there may be a need to, and I think the word was, to "tweak" some of those changes or some of those reforms, so that now that you have or your agents have experience with them in the field and know exactly how they're working or not working, that we'll have a chance to make some additional changes.

And I would simply ask that, as a part of your internal reorganization process and so on, that you elicit views of those in the field and come up with recommendations that might be useful to you, present them. I think this is the proper committee to present them to. And I know that the chairman and others on the committee will then want to perhaps hold hearings but, in other ways, act expeditiously to try to effect those additional reforms.

Can you do that as well?

MUELLER: Yes, we are looking at ways to tweak the Patriot Act. The Patriot Act has been exceptionally helpful already, but there are areas in which we think the provisions of that act could be tweaked to assist us.

KYL: I might just add in closing that I think it was the CIA director who testified that, with respect to our laws and our procedures and the methodology that intelligence and law enforcement agencies in the United States use, his words were, "The terrorists have gone to school on us."

What do you take his description there to mean?

MUELLER: The terrorists that we deal with are--many of them have spent time in the United States. They understand our freedoms. They understand our liberties. And they are not at all unwilling to utilize that knowledge to their benefit. They have gone to school on not only what they have learned in the United States, but what they pick up on our newspapers, what they pick up on the Internet, and are skilled at identifying loopholes and ways that they could operate more effectively and efficiently.

And to the extent that we publicize how we do things, it feeds the information that they have to enable them or better enable them to launch attacks against us.

KYL: And I just make the final point, Mr. Chairman, that, while it's important for the American people to understand generally how we work and--well, it is also important to protect some of the ways in which our law enforcement and intelligence agencies work, so that we don't signal to those who would do us harm every way in which we may try to thwart them. We have to have some capabilities that they simply aren't aware of or they're smart enough to figure out ways to get around it.

Again, Mr. Chairman, I want to thank both our witnesses here and, particularly, the good people at the FBI for all the hard work they are doing.

MUELLER: Thank you, sir.

LEAHY: Thank you.

Well, while Senator Kyl is still here, he apparently made a comment while I was out of the room suggesting that I was critical of you, Director Mueller, for not consulting with Congress on your reorganization. He perhaps did not have a chance to hear my opening statement, in which I praised you for consulting with both Republicans and Democrats about your efforts for reorganization, and praised what you have done on your efforts for reorganization, as I have on the floor of the Senate and as I have to the press on numerous occasions.

I did express, of course, the fact that I was surprised the new revised guidelines of the attorney general, basically quoting what the Republican chairman of the House Judiciary Committee, Congressman Sensenbrenner, said, that he was surprised at the lack of consultation on those guidelines, that he'd heard of them only two hours before they were announced. I have yet to have any consultation on them, although I have read the 100 pages on the website.

But just so the senator from Arizona--and I'm sure he did not intentionally--or did not want to misstate my position, but I will restate it. As I said earlier in the hearing, I commend the director, as both Senator Hatch and I did in our opening statements, for his consulting with us, and express my support of the reorganization plan and our intention to work with him to help implement it.

KYL: I appreciate the chairman's clarification.

LEAHY: I knew you would.


Senator Feingold.

FEINGOLD: Mr. Chairman, let me first thank you for your leadership and for holding a hearing on these important issues.

MUELLER: Off the top of my head, I do not have those figures. We can get you those figures.

I can tell you that there are two provisions that have been exceptionally useful. One is the changing of the language for the FISA from having to show a primary purpose--that the request for the FISA was for the primary purpose of a foreign intelligence goal to a significant purpose. And that has enabled us to utilize the FISA capability in ways that we had not been able to use it before.

The second area that I think it has been helpful is removing the bar to the CIA obtaining grand jury testimony and testimony that may have arisen out of a grand jury proceeding that we, in the past, had been--we had been barred from providing to the CIA.

Those two provisions have helped us, I believe, tremendously.

FEINGOLD: Well, I'm intrigued by that answer. And I thank you for that, but those are a couple of provisions that I don't think raised a lot of concerns among civil libertarians.

What I will be especially interested in is to what extent the more controversial provisions have provided any benefits. So, I would ask you and the department to provide the committee with a full and comprehensive report about the use of the powers granted by the Patriot Act. I think we're entitled to that in any event. But when you are asking for more powers, surely we have a right to know what's been done with the new powers.

An important way to ensure that a proper balance is struck between civil liberties and national security is obviously to monitor and review these powers. And I really feel we need this before some of these further powers can be examined.

I would like to continue my questioning by turning to the subject of the FBI's performance prior to September 11 and how it handled the Phoenix memo. I have been very troubled to hear some of my colleagues and Justice Department officials quoted in the press saying that they believe concerns of being accused of racial profiling led the FBI to not act on the Phoenix memo.

I think it is a distortion to say that acting on the memo would have resulted in racial profiling. That memo contained specific information about specific individuals. I think there has been a serious misunderstanding of racial profiling and what it means.

Indeed, I think these claims may very well be a distortion, maybe even a deliberate distortion, to distract attention from real mistakes or to cast aspersions on responsible and still necessary efforts to eliminate racial profiling in our country, which both the president and the attorney general have said is illegal or should be made clearly illegal.

Under any version of a ban on racial profiling, when law enforcement has legitimate reason to believe that specific individuals may commit a criminal act, obviously law enforcement may take whatever action is necessary.

Now, Director Mueller, you don't believe that concerns about being accused of racial profiling were a factor in the failure to act on the Phoenix memo pre-9/11 or to connect it to the Moussaoui information, do you?

MUELLER: I have seen one indication that a person who was involved in the process articulated that as a possible concern.

FEINGOLD: Do you think that was a legitimate reaction by that person?

MUELLER: I cannot say in the--I'm not going to second-guess, because I did not--I cannot put myself in that context. All I can say is that that person said that it may be--it was a concern to that individual.

FEINGOLD: Well, I'm troubled to hear that. And I was hoping for a different answer. I was hoping for you to say that, clearly, what was needed there was not some sort of an exception from a rule against racial profiling. Do you believe that having FBI agents contact flight schools and ask whether any students had exhibited suspicious behavior--for example, maybe they expressed interest in flying but take no interest if takeoffs or landings...


FEINGOLD: ... is racial profiling?


FEINGOLD: Well, this is a critical...

MUELLER: All I'm saying, Senator, is that there was one person who articulated that. Do I believe that--if the question is, do I believe that that was a valid concern? No.

FEINGOLD: Good. That's what I wanted to hear. And I think it's critical from you and from the attorney general and everyone else, is to make it clear that what we can gain out of this whole disaster is a clear understanding of what is the difference between racial profiling, using a criterion like that as the only or main criterion, versus the very legitimate and important work that you are trying to do to follow up legitimate leads.

And I'm hoping, even though some people want to make 9/11 the excuse to not deal with racial profiling, that the opposite will occur, that the public and all law enforcement people will come to realize that there is a big difference between illegitimate racial profiling and following up on legitimate leads.

And I hope that we will take this occasion. And I appreciate your final answer there, because we need to fend off these claims that racial profiling somehow had something do with the problems that occurred on--the inability to racially profile somehow had anything significant to do with what happened on 9/11.

I thank you very much.

Is there time left?


FEINGOLD: I thought I saw a red light there, so...

LEAHY: You did. You did.

FEINGOLD: I would love more.

LEAHY: The problem is, you would think, sitting this close to it, it would be easier to see it. But the way the lights are there, it's almost impossible. So I do appreciate members who have tried to stay, at least by Senate standards, within the time.

Senator DeWine.

DEWINE: Thank you, Mr. Chairman.

Mr. Director, thank you for staying with us for this long testimony today.

We're going to have the opportunity--and this committee will have the opportunity in an hour or so to hear Agent Rowley testify. And we've already had the chance to read a redacted portion of her--that portion of the letter that is not redacted and also to read her testimony. And I would like to make a couple comments about that. And then I would like to ask you a couple questions about that.

One of the issues that I think we really can't get into today is the whole issue of probable cause, as far as the facts. That's just not something that we can explore as thoroughly as it would need to be explored to make any determination whether each one of us, in our own mind, thought there was probable cause there.

But I would like to make a comment. It seems to me that all the decisions--or the decisions that are made in regard to probable cause at the FBI, at Justice Department, ultimately come back to two things: One is the statute, but then, also, how that statute is interpreted by the FISA court.

I remember when I was a county prosecutor that the police would come in and want a search warrant. And we weren't dealing with anything of any magnitude such as this, but we were dealing with what we thought were important things. And I would tell them, "Judge so and so won't accept it." And that was my answer. "That's not enough." And I was guided by the Constitution, but I was also, frankly, guided by what the judge I dealt with every day, I knew he would accept or he would not accept.

And I just think that is something that we need to keep in mind as we judge whether or not there is probable cause here, is that we need to--it is important for us, at some point, to look at how it has been--how the FISA law is actually being interpreted and, therefore, what impact it has on the people at the FBI and how Agent Rowley's--people who she has to kick it up the line to.

Let me--while we're talking about FISA, let me make also a comment, if I could, and ask for your brief comment about something else, and that is Senator Kyl and Senator Schumer's bill that they are introducing which would change the FISA law.

There is an interesting article in, I believe, today's "Wall Street Journal" that quotes Philip Heymann, who served as President Clinton's deputy attorney general. And he said that that legislation does not go far enough. And he suggests this. He is quoted as saying that authorities should be able to monitor non-U.S. persons based on a reasonable suspicion that they are engaged in terrorism, not the higher probable cause standard, as the amendment proposes.

I think that is something that we need at least to all look at. We are dealing with people--we're not dealing with U.S. citizens. We are not dealing with legal aliens. We are dealing with non-U.S. persons. And it seems to me that, when we have--if we had reasonable suspicion that they were engaged in terrorism or about to be engaged in terrorism, most Americans, I think, would think that we should grant that search warrant, that we should grant that warrant.

So, I don't know if you want to comment on that or not or if you want to just pass. I will accept either answer at this point.

MUELLER: I think it is something we definitely ought to look at with the department and evaluate whether this is, as far--whether this is the proposal that we should back.

DEWINE: Well, I will accept that answer. And I think it is something that we ought to at least look at. I think we need to understand how FISA really works in the real world. We also need to understand exactly--or have a debate about where we think we should be, what we should be doing in this, in the world we live in today, in regard not to U.S. citizens, but in regard to people who are not U.S. citizens and people who are not legal U.S. aliens.

Let me move to another portion of this letter, though, which I find to be the most important and, I think, most interesting of Agent Rowley's--both her letter and her testimony.

I suspect that this letter, this testimony could have been written by thousands of FBI agents, because, really, there is a tremendous amount of frustration there about the bureaucracy that the individual agent has to deal with. You inherited a great organization but also a great bureaucracy. And with that, comes all the problems of a very entrenched bureaucracy.

And as you try to reshape this bureaucracy into a lean machine that can go after the terrorists, to me, that's your biggest challenge. She is very specific. She talks about--and, again, I think this could have been written by any number of your 11,000 agents.

"Administration: Lift some of the administrative burden from the line field supervisor. Culture: Transition from a risk-adverse to a proactive atmosphere by changing our evaluation process--inspection, performance evaluation. Technology"--something you and I have talked about many, many times--"continued technology upgrades, integration projects." And it goes on and on and on.

To me, that's your biggest challenge, is how you're going to do that. And let me ask you that, but let me--I'm going to give you a chance to answer, but let me ask you two other related questions, and they are related.

And that is, how do you--specifically, how are you going to carry out what you have stated is one of your objectives, to encourage, reward people to deal with counterterrorism, people who go into the FBI, who work counterterrorism every day? How does that become the thing that is rewarded, just as much as somebody else who is not doing counterterrorism? And how do you reward those who are involved in internal security?

The reports that I have read, the people who I have talked to have indicated to me that internal security within the FBI has been looked at, frankly, as just something that's maybe important but that's not how you advance, that's not how you move up the line.

How do you emphasize those two things, and how do you deal with a culture problem?

MUELLER: Let me start with the last two and then I go to the former.

And that is counterterrorism, counterintelligence. You start with new agents, explaining with the new agents what the mission of the bureau is and what the two priorities of the bureau are: number one, counterterrorism, number two, counterintelligence, starting with the new agents. Promoting persons up in the ranks who have had the experience in counterintelligence and counterterrorism is critically important to turning that around.

Finally, the third thing is, put leaders in charge of those particular divisions who are dynamic, who can explain how important the work is and how interesting the work is. And as to the last, I have got leaders now in the counterintelligence, counterterrorism section that I think are dynamic, that people will look to as leaders in the future, and will also, at the same time, understand that this is the critical mission of the bureau.

The bureau has been terrific. Once you say, "This is the hill; we got to go take it," the agents have been terrific in lining behind that particular mission as articulated and getting the job done. They did it in the wake of September 11. They'll do in terms of the prevention side.

The bureaucracy is frustrating. I have told people...

DEWINE: Your agents are frustrated. That's what I see. They're frustrated. And there are so many good people out there who are doing so many good things, and that's what...


MUELLER: I am as frustrated, often, as they are. Part of it is the technology. We have not had the improvement in technology that allows us the horizontal information-sharing.

When I sign off on a memo--and I have this to a bunch of people--there are eight people that sign off before me. It is a paper-driven organization that has established regimens that we have to look at from top to bottom. But we have to do it in the context of the new technology.

I'll give you an example of people--there are things that occur that persuade people they don't want to be supervisors. One is doing file reviews. We do file reviews now. If an agent has 100 files, somebody goes and pulls those 100 files down, puts them on a desk. And you go through that file one by one and put in notations. Why would one want to be a supervisor when you have that kind of paperwork to do, when you have the computer capability and capacity to do it on a screen in 10 minutes?

And so, much of it is tied in with the new technology. But with the new technology has to come new procedures, new lessening of the bureaucratic approvals, and a new view of doing things quickly expedited, getting the job done, with the assistance of the technology.

When you look at the relationship between headquarters and the field, it is critically important in counterterrorism and counterintelligence, in my mind, to have persons that are respected at headquarters who are heading up those particular divisions--it's true in criminal, also--so that, when people come back to the field for advice, when people come back from the field to get something accomplished, they have got somebody there who has done it before, has done it maybe 20 times before, and is as aggressive, if not more aggressive, than the people in the field.

And so it's people, it's technology, and it's changing the procedures. And that's what we are attempting to do.

DEWINE: Thank you very much. Good luck.

LEAHY: Thank you.

And I do appreciate the questions that--I appreciate Senator DeWine's comments on FISA and Senator Feinstein's questions on the process.

We've heard from Coleen Rowley that a supervisor at FBI headquarters made changes to the Minneapolis agent's affidavit, she said, to set it up for failure. "The New York Times" has also reported another headquarters agent was basically banned from the FISA court by the judge based on his affidavits.

Senator Specter has raised questions, as he and I talked during the break, about perhaps sitting down with Judge Lamberth in the FISA court to find out what is going on. I worry about having a secret body of case law developing in a secret court system and not having any congressional oversight.

So, I'm not trying to deal out all the facts that go before that, but the legal reasoning. And I am concerned about that. And we will--certainly would invite any senator who would like to be involved in that, we will go into this, how the FISA court works, what the reasoning is behind it, because there has not been much oversight recently.

Senator Schumer has shown the patience for which he is renowned.


SCHUMER: Thank you, Mr. Chairman. I appreciate it. In Brooklyn, I'm one of the most patient people, you should know.


LEAHY: In Brooklyn, yes.

SCHUMER: In any case, I want to thank you for having these hearings. I think they're needed, they're timely and extremely appropriate. And anybody who, I think, thinks we shouldn't have hearings like this will change their mind after watching how it's gone today and how you've conducted it.

I also want to thank you, Mr. Mueller. This is not an easy job, I can see it on your face. You look a little different than you did when you were here first being sworn in.

MUELLER: Geez, I hope not.

SCHUMER: But I think all of us respect that you are doing your darn best here, and it's not an easy circumstance.

I'd just like to make one point to you, and maybe you can convey this to the attorney general--I have, myself--before I get into my questions, and that is this. You know, we're dealing with--since 9/11, there have so many changes in society, but there has been none that are probably more important in the future than reexamining the age-old balance between security and freedom. And if you read the founding fathers in "The Federalist Papers," that was one of the things that concerned them most.

And if there were ever a time and place where the founding fathers wanted debate, wanted discussion, wanted a variety of input, I think it's in that area where freedom and security, with a push and pull between freedom and security, which any democratic society has to deal with. And I have found, just too often, aversion to that in the Justice Department, and I think in the FBI as well, although not necessarily to you. And I know the Justice Department can control some of the things you say and do.

We would have been so much better off in areas like military tribunals and what happened at Guantanamo and some of these other things if there had actually been debate. And I think you know that, if you came to this committee and we debated it, the result would not be doctrinaire. There are people who are doctrinaire on the hard right who want to just remove everything, and there as just many on the hard left who say, "Don't change a thing." But I think the consensus of this committee is somewhere balanced in the middle. And I think we came out with a good product with the Patriot Act as a result of that consensus.

And I would just wish to convey the message that I think it would work out better for the Justice Department, for the FBI, and for the American people if there were more debate before we came to a conclusion, not just, you know, at 10:00 a.m., the attorney general and you have a press conference and say, "Here's what we are doing," when it comes to these very sensitive, very important issues, where we do have to recalibrate and readjust.

And I just--I think that would be better for everybody. And what we've found when it hasn't happened, again, there has been sort of backtracking, because it is always better to do that.

I'd like to talk about a few issues, ask you some questions on a few issues here. The first is the computers, which, as you know, has been something I have cared about for a while. And when I heard what you said earlier, it seemed to me at that, at least before 9/11, the FBI computer system was less sophisticated than the computer I bought my seventh grader for about $1,400.

So, let me get that straight again. In the trenches, in the Minneapolis office or somewhere else, before 9/11, if they punched in the word "aviation" or "flight school"--not a name, because you said it was different for a name--could they get every EC report that mentioned aviation and flight school?

MUELLER: It is my--and I am not sufficiently expertise in our computer systems. It is my--if you put in airline, you may well be able to pick up those--well, actually, I'm not--can you excuse me just a second?


MUELLER: This gets into the technology. I do not believe it can be done, because I do not believe there is full text retrieval, number one. And secondly, there was a system in place at the time of blocking certain cases from searches, not necessarily from headquarters, but searches from around the country as a part and parcel of the security provisions.

So that there are certain--for instance, the Phoenix EC, if the Phoenix EC was uploaded on the computer, there are only a limited number of people that could see it...

SHUMER: Right.

MUELLER: ... a limited number of people who would be able to do the search of it...

SHUMER: Right.

MUELLER: ... to pull up flight school.

SHUMER: That's a different issue. But was the technology there that if you punched in certain words that you can see every report that mention those?

MUELLER: I do not believe that is the case, but I am not sufficiently technologically astute to be able say that...

SHUMER: Right.

MUELLER: ... with assuredness.

SHUMER: Right.

MUELLER: We are--the one thing that I do know is that you have to put in the specific--if I put in Mueller, it has to be M-U-E-L-L-E-R. It will come up M-U-E-L-L-E-R. What we will not pull is M-U-L-L-E-R, M-I-L-L-E-R or other variations of it.

SHUMER: You know, that's even--that's a little different. But...


SHUMER: ... I mean, every day, every one of us goes on our computer and does searches of certain words, and...

MUELLER: We may have had...

SHUMER: ... it's not very difficult to do. And I'm just--I guess what I'd ask you is, how was it--I mean, because I think is important for--I am trying...

MUELLER: I think we are way behind the curve. I have said it from the first day.

SHUMER: But how was it we were so far behind the curve that it was almost laughable? What was wrong--that's not something dealing with information--well, maybe it is. Maybe it deals with turf in its most fundamental way. But it just makes my jaw drop to think that on 9/11 or on 9/10 the kind of technology that's available to most school kids and certainly every small business in this country wasn't available to the FBI.

MUELLER: I don't want to go too much in the retrospective. I will say that one of the--I think one of the contributing factors over the years is the belief the FBI can do anything. We have computer specialists, we have scientists, we have all of that, but when it comes to certain areas where there is expertise outside the FBI, we need to do a better job bringing that expertise into the FBI to utilize the funds that are given to us by Congress to get a product that will be useful.

SHUMER: I understand. I am trying to do this, because I'm trying to figure out the culture, because I think lots of the problems we have are just sort of simple like--simple I guess is overstating it--but are things that there would be no debate about, no ideological debate or anything else.

Can you just elaborate a little? What was so--why was it so hidebound? Why was it so--why was the agency so that they didn't have a computer system given--you know, they knew they had--I don't know how many agents then, probably close to the same amount now, 10,000 to 11,000 agents, and they knew that no individual could coordinate all of this, that they didn't get a rudimentary computer system to allow it to be coordinated?

You know, when we talk about analysis, the word--you know, you've talked about it, you're right--but the word "analysis" these days is analogous to "computer," because you need to separate in your individual searches the wheat from the chaff. And it doesn't take a great expert to figure that out.

So it's--I'm trying to figure out what went wrong then, because that will give us some of the answer to how you correct it for the future.

MUELLER: Well, let me--I'll tell you one anecdote. When I first came in and did a tour of the building in the FBI, there is a computer room downstairs right behind where you get your badges and the like. And I walk in. It's a big room, and half the room has servers. Well, servers have got a lot smaller, so there's a lot of room over there. On the other side of the room, there were a number of different computer systems. There were some Microsystems. There were Apples. There were Compaqs. There were Dells. And I said, what's this? And the response was, every division had a separate computer system until a year or two ago.

And yes, it is--that is reflective of the...

SHUMER: Let me ask you...

MUELLER: ... computerization of the bureau, but many companies are the same way. I am interviewing now for CIO, and I will talk to their--about their experiences in going into Fortune companies, and it will be the same thing. The stove pipes, the various systems and the necessity of getting a common architecture and a platform for the organization.

SHUMER: OK. I mean, and my guess is those companies aren't doing too well. I wouldn't hire the CIO from one of those.


MUELLER: I need one of the CIOs that has taken one of those and brought them into the 21st century.

SHUMER: Yes, OK. Does every agent now and every employee who needs it have access to e-mail and the Internet?

MUELLER: Has access to the internal e-mail. We do not--we have a classified system, and consequently to have e-mail outside the FBI, you need to have a separate computer. Many do, but not all.

SHUMER: Another area I am concerned about: What's our progress in terms of hiring people who speak Arabic, hiring people who speak Urdu and Farsi? This is something that we have been trying to get the FBI to do a very long time. Can we translate every needed interception in those languages into English quickly?

MUELLER: In real-time with regard to terrorism cases, yes.


MUELLER: And that is the emphasis and the priority to assure that we have, anything that touches on terrorism, that we have real-time translation. Now, it may be, in certain instances, 24 to 36 hours for a particular--for some reason, but that is where we have got the emphasis.

We have hired, I would have to get you exact figures, but well over 100 additional specialists in the last four to five months.

SHUMER: By the way, just going back to computer system. Is it considerably better now? Or it's just when Senator Specter asked you questions it's--I know you're on the way to improving it.


SHUMER: But right now, could Agent Smith in the Minneapolis office punch in the word "aviation" and get all of the EC reports that mention it?

MUELLER: We are laying the groundwork. We have the new...

SHUMER: You're not there yet?

MUELLER: No. We have the hard drives. We have the software packages, the operating systems. We have the LANs, and we have the WANs, which was the first--the foundation that we had to put in.

We do not have the data warehousing. We do not have the software applications that we need to do the kind of searching that is necessary.

SHUMER: How long will it take until we're up to snuff?

MUELLER: Well, when I came in, I said I wanted it done in a year. And I have been, for a variety of reasons, been much more involved now in the inner workings of getting it, and I cannot get what I would want in a year, probably two years. But we will have varying stages of capabilities as we go through this two-to three-year period.

SHUMER: Thank you, Mr. Chairman.

LEAHY: Thank you, Senator.

And Senator Sessions.

SESSIONS: Thank you, Mr. Chairman.

LEAHY: And I thank you for your patience and your attention to this hearing.

SESSIONS: Thank you.

I will follow up a little bit on Senator Schumer's remarks, but I would want to mention that, with regard to your advised guidelines, as I see them, there's nothing close to a violation of constitutional rights, as courts have interpreted, and certainly nothing on the valid statutory rights.

So I am very much--and it's within your power, is it not, to alter those guidelines as you have done so?

MUELLER: I believe it's within the power of the attorney general, yes.

SESSIONS: Well, I would just say it leaves it up to us. If people on this Senate or Congress are not happy with it, we can offer legislation that could alter those guidelines, but I don't think there would be much support for it. Some can complain about it, but I believe you're doing the right thing. You're taking some steps that will help your investigative power. It is not in violation of the Constitution or statute, and a bill to overrule what you did wouldn't get 10 votes.

Let me ask this. You know, you've been talking about the computer systems. I have, as you, have been the United States attorney and dealt with a lot of federal agencies. It strikes me that the last refuge of a bureaucratic person who has made an error is to claim the computer problems.

And I am serious about this question. The Arizona memorandum that came up, as I understand it, according to the "Los Angles Times," it was sent off by a clerk to somebody. It did not reach the head person in the section.

In the future, Mr. Mueller, would not you expect a memorandum concerning such a serious subject, so thoughtfully put together by an agent in the field, to go to that supervisor within minutes, within hours of being received, and be personally reviewed by that person?

MUELLER: Let me just start by saying that...

SESSIONS: Computer or no computer?

MUELLER: A computer or no computer. A computer is part of the issue. But there are other issues that had to be addressed, and that is the procedures in the section, and those were changed shortly after September 11 to assure that a unit supervisor reviewed each and every one of these electronic communications that comes in before they were deemed to have been completed.

We also put into place a circumstance where items that come in that relate to conceivable terrorist threats or terrorist activity are included in briefing papers that are provided to me daily. So that those tidbits of information not only come up to the unit chief and the section chief and the head of the counterterrorism division, but also to me.

The other way we have changed things is that there is now a joint CIA-FBI threat matrix, so that, during the night, any threats that come in, any pieces of information about flight schools and persons at flight schools will be put into the threat matrix that is looked at the following day by George Tenet and myself and, ultimately, the president.

SESSIONS: Well, you were in office seven days when this attack occurred. You were not there when the memorandums were received either from Minnesota or Arizona. Certainly, it is not your direct responsibility. You can't be held responsible for something that occurred before you took office.

But I guess--I know you're loyal to your troops and the people out there in the field, and I believe in the FBI. I have tremendous respect for them. But don't you think that was not an acceptable system, computer or no computer, that somebody should have picked up on, let's say, the Arizona memorandum and/or the Minnesota memorandum? And that a central person should have been reviewing that before, and that should have at least been able to raise questions about the possibility of those two bits of information that could have given indication of a terrorist plan?

MUELLER: The procedures in place were inadequate.

SESSIONS: And I hope that you'll feel free to say that. And I know you are a good Marine and a good loyal prosecutor, but I think the director should be quite direct about errors that occur and that are being inadequate.

Do you now, in this new plan, do you have an individual or close group of individuals who will be personally reviewing critical information? And, for example, if the Phoenix memorandum or Special Agent Rowley's memorandum came forward, would even you see that under the present circumstances in short order?

MUELLER: The salient portions of that memo, I would see. I have a new--the chief of the counterterrorism division, a guy named Pat D'Amuro, who I brought down from New York who was head of joint terrorism task force for a number of years and is an expert in Al Qaeda, who is heading it up. I've got a new deputy, and I have new sections chiefs throughout.

We have changed the personnel, expanded the personnel, realigned the assignments, and are in the process of continuously doing that, particularly with hoping to get approval for the reorganization, so that exactly that type of piece of information is not overlooked.

The way we are doing it now is by extensive briefing all the way up the line, but we need to put into place the individuals that will make this as part of the day-in and day-out review. And part of it also is to bring in the expertise of the CIA, who has a different expertise than our investigative agents, in terms of being able to look at things and put pieces into a larger analytical composite, so that we can provide a product to the decision-makers but also take action on that product. And that is part of the reorganization that I proposed to Congress.

SESSIONS: I like the reorganization. I salute you for it. I believe it's going to open up the FBI. I believe that it will vastly enhance your ability to spot and act on terrorist information. It's a quantum leap forward, there's no doubt about that.

So you're telling me that you are confident now that agents in the field will promptly send in any reports of interviews, FD-302s, they'll come straight in, and that somebody will be reading those with some experience and authority immediately upon receipt?

MUELLER: Well, we are not where I want to be. We have--Congress has given us a number of additional analytical slots. Hiring up for those slots, getting the type of qualified analytical personnel that you want and having them trained will take a period of time. We have had persons helping out...

SESSIONS: Well, let me just--but let me say this. I don't believe it takes that long to read the Phoenix memorandum or the Minnesota memorandum. Somebody can read key documents when they are coming in. If they are not, then you have that gap in there, and we may not act when a pattern occurs.

MUELLER: We have changed the procedures to make certain that that happens. But we have more to do in terms of expanding on our analytical capability, and that's what I have proposed to Congress.

SESSIONS: You know, I remember trying a case, a pretty significant corruption case, and we had wonderful FBI agent on the stand. And the lawyer attempting to discredit her got her to say that all FBI agents are special agents. And he said, "So it's not so special, is it?" And she looked him right in the eye and she said, "I think it is. I think being a special agent in the FBI is a great thing."

And I don't want have anything I say be construed as undermining the integrity and the work ethic and ability and skill of our agents. But I have, I think as you have seen, because you, more than anybody that's ever held this office I suppose, have been in the field trying hundreds of cases and know how the FBI works, does not mean we can't make it better.

I think Agent Rowley was--her complaints were driven by a high opinion of the FBI, a high goal for what she would like to see occur. And I appreciate you working on it.

Let me ask this. With regard to the Moussaoui search warrant, you, early on in the matter, responded in defense of the decision that there was not sufficient probable cause. Let me ask you, had you, at that time, personally reviewed all the documents, or where you relying on the advice of others?

MUELLER: I was relying on what I was told in the briefing. I had not parsed the documents.

SESSIONS: Well, I don't think there is a person in the FBI that is better capable of determining whether probable cause exists or not than you. You have tried some of the most important cases in the country. You know what probable cause is, and I am glad you're there.

But do you think those people that are oftentimes saying no to probable cause realize, and have they lost sight of the fact that they are not the judge, that they are not the Department of Justice, that they are advocates for national security and they ought to look at it in a positive light? And that if they believe it's important for the security of America, maybe they ought to take it to the judge and see what the judge says? Do they understand that sufficiently?

MUELLER: I think--I do think they do, but I do believe we need education in the FISA, not just at headquarters but also in the field, as to what probable cause means, how you can determine--get the facts to satisfy that standard. And there is more that we can do to educate not only persons throughout headquarters, but also in the field, and we are undertaking that.

LEAHY: And I might add, we are going to do some education of the committee too on the whole FISA issue. Senator Biden and I and others have been talking about that, and we will. Thank you.

SESSIONS: Can I ask one yes or no question to the witness?

LEAHY: Sure.

SESSIONS: My time is out.

LEAHY: But only because you are such a nice guy. Go ahead.

SESSIONS: Thank you, Mr. Chairman. Did you now believe that that was a correction decision? Or have you had a chance to review the documents?

MUELLER: I have not parsed it, and there are a number of facts that may bear on that decision, and I have not identified the sequence of facts that went into that determination.

SESSIONS: I think it was a close call.

LEAHY: Trust me, the director is probably going to get another opportunity to talk about that later on.

Senator Durbin.

DURBIN: Thank you, Mr. Chairman.

And thank you, Director Mueller and Mr. Fine, for joining us today.

Let me echo the comments of Senator Sessions about the feelings we all have about the men and women of the FBI. We've talked a lot about management shortcomings, technology shortcomings, but when it comes to dedicated professionalism, there are no shortcomings. These are men and women who are dedicated to the safety of America. Many of them risk their lives every single day for us, and it bears repeating by all of us on this committee that nothing we say will detract from that.

Secondly, let me tell you that I continue to stand in your corner. You have been in the center of a maelstrom here. But I think that your honest, open and candid answers and your commitment to reform have put you in a position in my mind exactly where you should be, leading this effort at the FBI, leading this effort to reform the FBI.

I also want to say to the chairman of the committee that I thank him for this hearing, and I think we can't allow the fog of war to stop us from a frank discussion of security shortcomings in America. And your leadership in calling this hearing, I think, is highlighting things that we need to do to make America safer. And in that regard, I think we're meeting our obligations to the American people.

CANTWELL: They wanted to change their culture, they want to make sure that privacy is protected, even though they have rules, and plus they created a privacy officer.

Why not create a director of privacy and civil liberties accountability within the agency to be someone to look and make sure that the culture and the organization is adhering to the policies that protect those individual's civil liberties, again, not from a response from an IG saying, "Have we broken the law?" but from a cultural process?

MUELLER: Well, I will tell you that I try to reach out to other opinions articulated, whether it be the ACLU or the--and the privacy groups that have particular concerns. I did it in my previous positions, I'll continue to do it in the future, so that I get the input before we make--as we go along making decisions. And I would be happy to consider, let me just put it that way, what you're suggesting.

CANTWELL: Well, I've read I don't know how many editorials where people have said, "This is the group--this body, this organization is going to the oversight on the FBI, and to make sure that these abuses"--and I'm sure we will have more hearings. I'm sure we will have listings and accountabilities of how many warrants were issued in a variety of things. But if the agency is serious about those new guidelines, and serious about protecting civil liberties, then having someone in the agency whose main job is to help that culture understand those civil liberties seems to me to be a wise investment.

LEAHY: Thank you, Senator Cantwell.

Well, we will do Senator Edwards and Senator Biden. Then we're going to have a vote--well, actually it'll occur just about that time, and we will finish this panel. I would note that the record will be kept open for those that have questions, and the next panel would then began at a quarter to 3.

Senator Edwards?

EDWARDS: Thank you very much, Mr. Chairman.

Good afternoon, Mr. Director.

When the FBI initially rejected the FISA application from Minneapolis, my understanding is its because the general counsel at the FBI believed there was not sufficient legal basis to pursue it at that time. Is that basically correct?

MUELLER: I have not--there is an ongoing investigation on who said what when during that. At one point in time, I was briefed to believe that there was the individual--I'm not certain who the individual was, I'm not certain it was the general counsel, but a lawyer in that shop who believed that there was insufficient probable cause.

EDWARDS: OK. Well, I didn't mean to get hung up on who the particular person was, but a lawyer within the general counsel's office.

MUELLER: I believes that's the case.

EDWARDS: OK. Did that office of lawyers have available to them at that time the Phoenix memo?

MUELLER: I don't believe so.

EDWARDS: OK. In your opinion, had they had the Phoenix memo available to them at that time, from your experience and your own training as a lawyer, do you believe the FISA application would have been approved?

MUELLER: I am hesitant to render an opinion because I have not parsed it. I have not sat down and looked at the facts. I have not looked at each of--the evolution of each of the iterations of the document, and I'm hesitant to do that without having done it myself.

EDWARDS: Do you know generally what information was available to the lawyers within the office at that time?

MUELLER: I know some of it generally, but not with specificity.

For instance, so much would depend on the information that perhaps came from overseas, and that might be specific in a particular way or fit in with another fact that could give probable cause.

I have not gone through what I would do as a prosecutor to determine whether or not there's probably cause or not in the document.

EDWARDS: Do you know what the lawyers within the general counsel's office believe the impact on their opinion would have been had they had the Phoenix memo?

MUELLER: I do not. I have heard at some point in time that one lawyer expressed a view that if he or she had had the Phoenix memo, it would have made a difference.

EDWARDS: Yes. And that was a lawyer within the general counsel's office, as you understand it?

MUELLER: I believe that's the case.

EDWARDS: OK. If the--if a FISA had been gotten before September 11--and I'm sure you've seen there are press accounts about--I'm not asking you confirm this, but there were press accounts today about connections between Moussaoui and three of the terrorists--do you think that FISA and the information that would have been gotten from it could have disrupted what happened on September 11?

And please notice the word I'm using. I'm not saying "prevent," I'm asking "disrupted."

MUELLER: Again, I have done some speculating in the past. I prefer not to speculate as to what might have happened. I am not familiar with all the intricacies of what was on the computer, what other pieces of information might have been found in his personal effects and it's not only in Minneapolis, but it's also apparently in Oklahoma City. And I have not done the analysis to determine whether or not, if you put them all together, there are steps that could have been taken that would have enabled us to disrupt that which happened on September 11.

EDWARDS: Based upon the information that you do have, do you believe that information could have disrupted the operation?

MUELLER: I do not believe that it is likely that it would have.

EDWARDS: And there's some of the information that you have not yet looked at I gather.

MUELLER: That is true. And the other point of it is, there may be information at other agencies. In other words, I do think it's important to look back and see how we interface with the CIA, what information was made available and when it was made available in order to reach the conclusions that you're asking us to reach. And my understanding is that's the exercise that the Intelligence Committee is going through.

EDWARDS: Last fall, toward the end of last year, actually, I asked for a briefing on the Moussaoui investigation, the Moussaoui situation. And there was a briefing that took place in January with Mr. Frasca, David Frasca, and Spike Bowman (ph), who are, as you know, two senior FBI officials. And based upon that briefing, I actually felt reassured about the vigor with which the Moussaoui investigation had been conducted.

There are some things that have come to light since that time that I was not told about--we were not told about at the time. And I just want to ask you about three of those, if I can.

First is that neither Mr. Frasca or Mr. Bowman (ph) mentioned the existence of the Phoenix memo. Second, they did not mention any direct or indirect links between Moussaoui and three of the September 11 hijackers. And third, they did not mention to me or to us that the--because the briefing actually took place through staff--they did not mention that the Minneapolis office had some serious concerns about the handling of the Moussaoui matter by FBI headquarters here in Washington.

Did you follow those three things?

MUELLER: I believe so.

EDWARDS: OK. At the time of the briefing, which was on January 15, were the briefers, Mr. Frasca and Mr. Bowman (ph), aware of those three things?

MUELLER: I'm not certain to what extent they were aware of the Phoenix EC. I do not believe that they--I'm not certain what you were referring to when you talk about the links of Moussaoui to three of the hijackers myself, so I rather doubt that they were aware of that at that time. And I believe that they may well have been aware about the Minnesota--the Minneapolis concerns, but I don't know that for sure.

EDWARDS: Do you know whether the Phoenix memo, in fact, was addressed to Mr. Frasca?

MUELLER: I believe it was.


MUELLER: If I could just check for a moment to make certain that I'm right on that.

EDWARDS: I think you are right.

MUELLER: Yes, it was.

EDWARDS: OK. So Mr. Frasca got the Phoenix memo. He was in the briefing. You indicated that you believe they knew about the concerns.

MUELLER: I do not--it may well have been addressed to Mr. Frasca. I'm not certain that he had ever reviewed it.

EDWARDS: OK. Let me ask you a follow-up question.

MUELLER: Mr. Fine can, perhaps. He did the...

EDWARDS: If he knows the answer, that's great.

FINE: I believe the answer is that, while it was addressed to him, he says that he did not receive at the time, but in the fall of last year he was aware of it. So that was before the briefing.

EDWARDS: OK. Which would mean that by the time of this briefing in January he would have been aware of the Phoenix memo, would have been aware based on--Mr. Director, based upon your testimony--aware of the Minneapolis field office's concerns. And the third area I asked about or...

MUELLER: I would presume, but I can't speak for him on that.

EDWARDS: Did you know it at that time in January?

MUELLER: About what?

EDWARDS: The Minneapolis office concerns.

MUELLER: I knew there was an issue with regard to probably cause to show that Mr. Moussaoui was an agent of a foreign power. I knew that that was at issue. How that played out, in terms of the--I'm not certain when I learned about the discussions back and forth.

I knew at least by January that there was that issue.

EDWARDS: Let me ask you this. Assuming, for purposes of this question, since some of this you don't know about personally. And in fairness to you, I'm asking you about other people. If some or all of that information was available to Mr. Frasca and Mr. Bowman, and they were here for the purpose of briefing us about the Moussaoui case, the Moussaoui investigation, what had been done, what had not been done, do you think it was appropriate for them not to tell us about those things?

MUELLER: I always think it's--it is appropriate for FBI briefers to be open and candid whenever the come up the Hill and brief. I do not know whether they, at that point, tied in--the question has come up, if you had had the Oklahoma EC or the Phoenix EC in hand, would that have changed the view as to whether or not you'd have gotten a FISA warrant? I'm not certain they had that in the back of their mind when they were doing the briefing.

But absolutely, I believe--I believe, when they came up, that they were trying to be honest and straightforward. I don't think they were hiding anything at all. And I expect FBI agents, when they come to brief your other senators or others on the Hill, to be absolutely straightforward and honest. I have no reason to believe that they were not trying to do it on that occasion.

EDWARDS: Do you know why they didn't tell us about any of those things?

MUELLER: I do not know.

EDWARDS: Let me do one other thing very quickly, because I know my time is about up, and Senator Biden's been kind enough to let me go.

And I appreciate that very much, Senator.

Quickly, about the new guidelines, you know, I think the rationale for it makes sense to me, that if people can go to religious services--regular folks can go to a religious service, FBI agents ought to be able to do the same thing. That makes some sense.

On the other hand, of course, your agents have some powers that regular folks don't have. And I think our concern is to make sure that there are safeguards in place to make sure that there are no abuses that occur. I actually have no doubt about your personal commitment to that.

When the attorney general was here, though, six months ago, he said, and I'm quoting him now, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists," end quote.

My concern is to make sure that these guidelines--which I think on their face make a great deal of sense, actually--that they're not abused; that we don't have individual agents out around the country conducting their own ad hoc personal vendettas against people for who knows what reason. And I think they're--I do think that we strongly support what you all are doing to make sure that our people are protected. But at the same time, as you stated earlier, we believe those liberties need to be protected at the same time.

Can you tell me whether, from your perspective, you draw a line between political discussion that we may--you and I both, may strongly disagree with, and what people would characterize as terrorist activity or terrorist support activity?

MUELLER: I think I can use examples of going over the edge. And that is if there is discussion about harming other individuals, killing people, undertaking some form of terrorist attacks. That clearly would fall in the range of what it states here, "for the purpose of detecting or preventing terrorist activities."

We can disagree politically often. That certainly would not fall in that category. And the category is fairly narrow with regard to going to public places for the purpose of detecting or preventing terrorist activities.

EDWARDS: And I'll just mention this in closing. We've had some discussion with you and your staff about making some of the information--big-picture information about the use of FISAs, trends the extent to which they're being used, available to the American people, without in any way interfering with the investigations and the fight against terrorism that you all are engaged in. I hope we can continue that, because I think it's an important issue.

I think you would agree with me, actually, that it's a good thing for the American people to have whatever information we can make available to them without inhibiting what it is you're trying to do. So we'll continue to work on that with you.

Thank you, Mr. Director.

MUELLER: Thank you, sir.

LEAHY: Thank you.

Senator Biden, who gets the award as the second most patient person at this hearing?

BIDEN: Thank you, Mr. Chairman. One of the good things about not being chairman of this committee anymore, I don't have to turn the lights off like you do.


Your patience and your physical constitutions are admirable. I thank you. And you may be pleased to know, I'm going to not focus so much on the memos. I'll come back on that.

But one of the things that does concern me here is you're only a piece of the puzzle. And we're not--we talk about connecting the dots. I'm not sure this government, us included, are connecting the dots on law enforcement here.

Let me be more precise with you. You are, necessarily, reorganizing the FBI. What you move, the pieces you move, affect other pieces. DEA is significantly affected. The COPS program, which this administration is eliminating, is deeply affected. The Homeland Defense Office, which you're about to eliminate, I guess--I don't know what the hell we're doing--is about to be changed.

Now, in fairness to the president, in fairness to the president, this is all new. I wish we wouldn't all--I think this is a place and a time where a good dose of humility is in order, for senators, for presidents, for directors of the FBI, for everybody.

Because everybody should understand you move one piece, it's affecting every other piece in this puzzle--every other piece in this puzzle. And so even if you get it 100 percent right, if you do the perfect job, you may inadvertently, by what you do, impact negatively on--what are we all about? We're about the public safety of individuals.

I've been on this committee for 30 years. I used to be the chairman of this committee. I've been the head of the Crime Subcommittee and the Drug Subcommittee and the oversight of the FBI for over 20 years. And there's been a lot of changes that have taken place.

The bottom line is, whether or not my mother gets killed by a terrorist, or my mother gets killed by a drug lord, or my mother gets killed by a junkie, or my mother gets killed by a bank robber in the parking lot of the supermarket, it doesn't matter. She's dead. She's dead.

And the single biggest problem we have facing America every single day is the drug problem. It's causing 68 percent of all the violent crime in America. Relates directly to drugs. More people are killed in drug-related occurrences than have occurred in all the terrorist attacks combined. Not even close.

Now, that doesn't mean we shouldn't focus on terrorism. What I'm trying to get a handle on here is whether we're doing this on the fly, or we're doing this really intelligently. So I want to ask you a few questions.

Was the FBI consulted on what the president is going to announce tonight? Were you consulted?

The president says thus far there is a--what we're talking about here is, there's going to be a new Homeland Defense Office. Not the old one, a new one. We're doing this again. Were you consulted on the details of this new office? Will the FBI gain or lose jurisdiction as a result of this new office?

MUELLER: Respectfully, Senator, I do not believe it appropriate for me to disclose discussions I might have had with the president.

BIDEN: I think that's malarkey. That is not legitimate. I'm not asking you what he said. I'm asking you, were you consulted?

MUELLER: Senator, I believe that I should not be forthcoming with regard to consultations with the president. I believe the president is entitled to the advice from a number of people, and I do not believe that it would be appropriate for me to get into it.

BIDEN: With all due respect, fortunately I'm not the chairman of this committee, because I do not accept that answer. You are in this committee. I am not asking you; there's no executive privilege here. I'm asking you whether you were consulted. That's all I'm asking you.

And if you can't tell us whether you were consulted before the president of the United States is about to announce a total reorganization of the entire homeland defense effort, you can't tell us whether or not your jurisdiction's going to be changed, you can't tell us whether or not there will be a synthesis of intelligence from the White House sources, including all of these agencies, how are we to...

MUELLER: I think the president is entitled to make whatever announcement the president's going to make tonight. And I would be happy to come back tomorrow after the president's made his announcement and discuss it.

But I do not believe that it is appropriate for me to--because of the coincidence of this hearing today, to get into discussions that the president may have had with regard to whatever he is going to announce tonight.

BIDEN: I'm not even asking. Have you--has he spoken to you about this?

MUELLER: I, again, Senator...


BIDEN: I think this is ridiculous. I--that's all right. I'll move off this.

LEAHY: And there will be order in the...

BIDEN: I'll move off this.

This is one of the reasons why there is this pall that, sort of, hangs over the office and this whole question about what we do about homeland defense.

You can't sit here and say whether or not you've been consulted about a reorganization is I find astounding.

But let me move to another issue, the reorganization of the FBI. How many agents are currently assigned--by the way, you all state, and you're right, as the author of the Violent Crime Control Act that put 100,000 cops on the street and did this, and I wrote that myself, I want you to understand that I congratulate the FBI on their work.

In your budget submission to Congress you noted that the FBI's Violent Crime Major Offenders Program is partially responsible for the fact the crime rate has declined an average of 7 percent per year from the beginning toward the end of the 1990s.

Now, we have some things that are happening out there. There's a demographic shift. Those folks, 37 million of them in the crime-committing years, are about to get into the system. We have a new demographic bulge. The only thing you know about crime and I know about crime, and I've been doing it as long as you have, is that when you get to be 35 or 40 you commit fewer violent crimes because you can't jump the chain link fence when the cop is chasing you and the only--for real. We don't know a whole lot more about a lot of these things.

And we also know that the crime-committing years of those kids who think they're invincible and not at all vulnerable between the ages of 12 and 18, and there's a direct correlation between how many of them that are there and the rate of crime that exists--violent crime that exists.

We're about to get a bulge in violent crime, based on past track record, because we have this new cadre of young people, sort of, the baby boomlet that's out there. We also have the emergence of new threats and we have all the other things we know about.

Now, totally, can you tell me how many FBI agents are currently assigned to your Violent Crime Section?

MUELLER: I would have to get you the figures. I don't have them off the top of my head.

BIDEN: Do you know, Mr. Fine?

FINE: No, I don't, Senator.

BIDEN: I can tell you. There's about approximately 1,800 of them.

Now, do you know what percentage anyway are going to be shifted out of Violent Crime?

MUELLER: I believe that we are shifting approximately 59 agents out of Violent Crime.

BIDEN: Now, how will...

MUELLER: It's not approximately. I think it is 59 agents...

BIDEN: It is?

MUELLER: ... in the proposal.

BIDEN: How will this shift be felt in your field offices? I mean, do you have any sense of what that means in terms of manhours used that now will not be available to deal with violent crime?

MUELLER: Yes. The process we went through to determine whether or not--or what programs would be affected by the shift of resources to counterterrorism, was to go to the agents in the field, special agents in charge, and say, "OK, where can you pull people back from task forces?" And my belief is those 59 bodies that will come off of Violent Crime will be where we have 12 bodies--or not bodies--when we have 12 individuals, special agents working on a task force addressing violent crime, we will now have nine or 10, and that'll be across the country.

So I think it will be a minimum impact in particular divisions, but I have also told the SACs that if there is a particular crisis or a particular threat in a city, then they should use their discretion to take others off of other programs to address that violent crime problem.

BIDEN: Now, keep in mind, I'm not being critical of your decision, because you're the only guy that can do the terrorism side of this. You've got to do this. I'm trying to make sure we understand what's going to be left out there.

Can you tell me what specific functions--have you categorically made judgments about local functions that have overlapped? For example, FBI agents have handled interstate car theft. FBI agents have handled bank robberies. FBI have handled things that are local concurrent jurisdiction, but we've looked to the FBI to do them.

Have you made any categorical judgments about things you are not going to be in on anymore because you have to shift your resources to deal with terrorism?

MUELLER: I've made judgments. I don't know whether you'd call them categorical judgments.

BIDEN: Well, I mean, categories of crime.

MUELLER: Categories, yes. And bank robberies, I think we ought to stay in multi-county bank robberies. I've met with IACP, for instance, and they believe that we ought to stay there because we provide a service that they cannot replicate. We would not do one-note bank robberies in the future, they can handle those.

Armed bank robberies, we probably will stay in those.

When it comes to narcotics, the areas that I'd like to withdraw from are those where we overlap with DEA, particularly in the cartel cases, but not do it abruptly. When we have agents that are intimately involved in an investigation of one of the cartels, we ought to withdraw slowly from that.

We ought to probably no longer be doing cases such as--well, marijuana cases, stand-alone methamphetamine cases, the ecstasy cases where the state and locals can do those cases. But by the same token we ought to be flexible in a particular area where they need our resources, where DEA is not there, be flexible to address the crime on the local level.

BIDEN: I appreciate it. I know my time's up, but there's one area maybe I'll submit in writing, but 400 FBI agents are coming off of drug cases into counterterrorism. Again, I think you have any choice but to do that. Did you discuss that, since it's happened already, did you discuss that with the director of the DEA?

MUELLER: Well, it has not happened because the proposal...

BIDEN: Well, let me put it this way. You are formally proposing it.

MUELLER: Yes. I have discussed it...

BIDEN: Did you discuss with the DEA?

MUELLER: I have discussed it. Yes.

BIDEN: And what was the response of the DEA, unless that's executive privilege too? Are they telling you that they're going to need more money? Do you think they need more agents? I mean, what do you think's going to happen?

MUELLER: What I discussed with Mr. Hutchinson was--with Asa was the process whereby we would assure that nothing gets dropped in the cracks as we reassign these individuals. Now, my understanding is that he believes in the short term he can undertake that, but I also believe that he'll be looking for additional resources down the road.

BIDEN: Well, just so you know, you have 400 agents, roughly $100 million, you've been aiding with DEA. You've been doing a great job. You're going to be gone from that. They're going to end up $100 million short in terms of resources. They're the resources you're contributing now to the drug war, about $100 million.

And I hope that as we put this all together--and I'll be back to this a lot, Mr. Chairman--and it's not the director's responsibility--not the director's responsibility. But there's more than one piece to this puzzle.

We will have not served our communities well if we have focused more on anti-terrorism, reduced the total number of cops that are on the street, impacted by a $100 million reduction in the anti-drug effort, moved in a way where we find that we're going to have additional responsibilities taken from you or added to you through this new Homeland Defense Office.

You can't do the whole job with the same amount of money and the same number of people. You can't re-slice the pie, I'd respectfully suggest. You need a much bigger pie--a much bigger pie. And I'm here to tell you, you'll get my support to make the pie bigger for the FBI, and I hope someone in the administration is listening, that there's more than one piece of this pie.

And I would conclude by saying, Mr. Chairman, that when you were out, the senator from Arizona talked about how there was--you know, that he had held all these hearings and so on, which he did in the Terrorism Subcommittee, and we didn't pass any of that stuff. And he said that...

LEAHY: Actually, we did pass it. It went over to the House of Representatives and the Republican House...

BIDEN: I agree. Well, that's what I was about to say.

And that civil libertarians were opposed to it.

Right after 1994, and you can ask the attorney general this, because I got a call when he introduced the Patriot Act, he said, "Joe, I'm introducing the act basically as you wrote it in 1994." It was defeated then not by any liberals. It was defeated then by the folks who worried whether we'd have the Minute Men would get in trouble, by the Mr. Barr's of the world who were worried about the right wing, not anything else.

That has nothing to do with you all, but just to set the record straight, almost the same thing that got passed, the Patriot Act, was introduced by me in 1994 and it was the right wing that defeated it. You guys tried to help get it passed, including the wiretap changes and the rest.

LEAHY: Good. Because we have a vote on. I would note that we--we've corrected (ph) a number of Senator Kyl's earlier statements.

But the point is, we did pass a piece of legislation out of here, which then--passed it out not only this committee but the Senate, and it died in the Republican-controlled House. I mean, for those who think this is something political.

Director, I just want to correct one thing. You said it was a coincidence that the announcements were on the date of your discussion here, or your hearing here. The announcement the president's going to make, you say that's a coincidence it happens be today.

The press is already reporting from the White House that it was purposely done today. I'm not sure why; I don't understand these things. I would hope not done to distract from this hearing because this hearing, I think, has been an extremely good one. I think the questions asked by both Republicans and Democratic senators have been very good. I think you and Mr. Fine have given very good answers. I know you're not going to answer--I happen to disagree with you, I happen to agree with Senator Biden on the question of executive privilege. But just so you'll know what the questions are that you're going to be asked after the president's announcement.

In a way, I feel a little bit sorry for Governor Ridge, who I think is a great guy. I have the highest regard for him. Like you, a former Marine.

MUELLER: I honestly think he was in the Army, but I may be wrong.

LEAHY: Whoops. I have higher for the former Marine, and you the reason why, having been the father of a former Marine...

MUELLER: I'm standing defending Tom Ridge.

LEAHY: But I do have a very high regard for Governor Ridge. I served here when he was in the House. I feel somewhat sorry for him, though, because he's put in an impossible position where he has no line authority, no budget, no confirmed status. All the things that many of us have said would be a problem. We've been told for eight months that is no problem. Now apparently the White House has realized what a lot of people up here in both parties have told him, it is.

But I'm going to want to know whether the agency will be operational, will be able to conduct or direct investigations, will be able to collect information in this country. Will your foreign terrorism tracking task force be transferred to this new agency? Will all the investigations on terrorism be reported to this new agency, or will it be along the lines of what you've talked about? What about all the information you collect in this country on terrorism, will all that be given to new Homeland Security Office?

So, you said, Mr. Director, that you would be willing to come up here and talk to us about this. You can be guaranteed you'll be given that invite, because there are only so many times one can reinvent the wheel on this. And as you've heard some strong support for some of your reorganization plans, I don't want every time somebody raises questions of past mistakes that the White House is going to announce some kind of a new reorganization. So we can just talk about that.

What I want to do is fight terrorism. I don't want to be moving organizational charts around. I know you want to fight terrorism.

But those are the things we have to do. We have to look at real issues like, right now, the radical fundamentalist unit to which the Phoenix EC was sent staffed 100 percent by agents who had been at FBI headquarters for under a year.

I mean, these are the kind of things we should be looking at.

BIDEN: Mr. Chairman...

LEAHY: And so I appreciate. I'll be anxious to turn on my computer tomorrow and read the transcript of whatever is announced tonight on the thing. But just so you understand, there's going to be still a lot of questions.

All we want to know is, who's doing the job? Who's making sure that we don't have another major screw up like we saw with the memos prior to September 11? We just want to protect Americans against terrorists. I don't care who gets the credit for it. I just want America to be protected.

BIDEN: Mr. Chairman, may I just have 30 seconds?

I realize I was confrontational with you because you surprised the hell out of me. You've come and suggested a whole new reorganization to us, and the president's going to announce a reorganization tonight, and you can't tell us whether or not the reorganization you have, or asking us to consider, has been vetted, and has been discussed with and coordinates with the other one. That's the reason for my frustration. I just assume you were going to answer my question. It's nothing about you. It's nothing about you.

But I hope to Lord after you're submitting to us a reorganization, and the president announces today that he's submitting this most significant reorganization I think they said in 50 years, or 100 or something, that you all had talked.

LEAHY: And we will stand in recess until 3:15. Thank you.


LEAHY: I do want to welcome Special Agent Coleen M. Rowley of the FBI.

She's been an FBI agent for 21 years. She's currently the chief division counsel for the Minneapolis field office of the FBI. She came to the attention of this committee when she wrote a letter to Director Mueller that was given to members of Congress. And her letter refers to a number of issues this committee's heard from other FBI agents in the past. And Senator Hatch and I felt that--the nature of the hearing we're having today, it would be good if she testified.

Did you want to say something before it starts?

HATCH: No, I'm fine, I'm just looking forward to your testimony.

GRASSLEY: Mr. Chairman, could I say something?

LEAHY: Yes. The senator from Iowa, of course.

GRASSLEY: Yes. I think you, Mr. Chairman, because Special Agent Rowley is a native of my home state of Iowa, and she's also a native of my wife's home town of New Hampton, Iowa. But more importantly, Agent Rowley is a patriotic American who had the courage to put truth first and raise critical but important questions about how the FBI handled a terrorist case before the attacks, and about the FBI's cultural problems.

Agent Rowley, your testimony today is a great service to this committee, the entire Congress, the FBI and the American people, and I thank you for coming.

We should be honored to hear your testimony today. People like you who come forth to, as I put it, to commit the truth, a very terrible sin among some federal employees, but you come forth with important information about the FBI. There's been heroes like Fred Whitehurst before you who exposed the FBI crime lab scandal, and we had four agents last summer who revealed disparities in discipline and a pattern of retaliation against those who investigated misconduct inside the FBI.

Agent Rowley has thrown the spotlight on specific and general problems happening at the FBI before the terrorist attacks, and she has important insights with her perspective from the field about what the FBI can do to change. The FBI must improve so it can prevent future terrorist attacks, and her testimony, I believe, is very important to help this happen.

Ms. Rowley, I believe, is a dedicated public servant who tells it like it is. She wanted to be an FBI agent since she was 5 years old, and she has had a distinguished 20-year career at the FBI. She worked in a variety of offices, including New York, where she investigated Mafia after learning Italian, and worked with people like Rudy Guiliani, Louis Freeh and Michael Chirktaw (ph). She worked in the Minneapolis division, now since 1990, and a number of areas, including as the ethics officer.

Agent Rowley, I thank you again for agreeing to testify today so that we can hear your constructive criticism of the FBI to help it reform and to help it improve.

Thank you, Mr. Chairman.

LEAHY: Thank you.

Well, Ms. Rowley, both Senator Wellstone, the senior senator from your state, and Senator Grassley, who is from your state of birth, have said very good things about you. And they both have gone out of their way to talk to members of the committee with all of that. Now we'd like to hear from you.

As you had mentioned, a roll call vote has started. Why don't you begin your statement? If we have to stop at some point, I will. It won't be because of something you said, it's only because we have to vote in person. Go ahead.

ROWLEY: Well, the first thing I want to do is thank you for the opportunity to appear today. I never really anticipated this kind of impact when I wrote this letter to Director Mueller over two weeks ago. I don't know if you know, I think they've been saying I anguished over this a week. It wasn't even quite a week. It was more like a three-day period, and it was a fairly sleepless three-day period when I began to initially just jot down my thoughts, because I knew I had to appear before the staffers of the Joint Intelligence Committee, and I didn't want to forget anything.

And also, you'll probably find out, I'm a little better on paper than I am verbally, so I was, kind of, afraid of that. That was one of the reasons I started to write it down.

I also had another big impetus that was kind of behind this all, and one of the things was I thought the new direction of the FBI, perhaps--it was, kind of, hard to discern when it was first announced, but I thought I saw some impetus towards a little more additional bureaucracy and micromanaging from headquarters. And I wanted to point out to Director Mueller that that seemed to fly in the face of what we should have learned from September 11. And the two things were the impetus for the letter.

Of course, you know, I have many years of experience in the FBI. I really do care, really about the FBI. I've invested, you know, almost half my life in it. And I do care also our protection now. I've got four children. A lot of my friends have children, and I really think we ought to be doing our best to try to prevent any future acts of terrorism.

I did, in the last couple of weeks, receive hundreds--I was counting them for a while but I lost track--but I received hundreds of e-mails and telephone calls from agents--mostly agents, some supervisors, some prosecutors, some retired FBI leaders. And I'm not going to presume to speak for all of those people, but when I looked at them, and I've read most of them--there's a few I probably haven't got a chance to look at that have come in since I left, but of the ones I looked at, I did see a real common theme emerging. It seems like it, kind of, struck a chord with a lot of people about this idea of the bureaucracy.

A lot of other agents told me similar stories about cases that had, you know, maybe unjustifiably not gotten anywhere. And I have, you know, a whole stack of those.

I think there is really the main thing being a real strong consensus that we need to streamline the FBI's bureaucracy in order to more effectively combat terrorism. We need that agility that Director Mueller was speaking of this morning, that agility and ability to quickly react, and I really see that as, if you get too top-heavy with too many layers, he also mentioned that problem, that you are going to be stymied.

I was encouraged by Director Mueller's testimony this morning, because I think many of his ideas do seem to go in the right direction, and actually are quite consistent with the various items I had in my letter to him. He really has an extremely difficult job, and that's an understatement. When I talk about trying to trim the bureaucracy a little bit, I don't know how you can underestimate that. It's been tried before and failed, and he just has a tremendously difficult job, which I can appreciate.

I want everyone to know that no one today previewed, in the FBI--of course, they gave me approval to be here, but no one read the statement I did. I did this one quite quickly because I didn't know I was coming until recently, and in this statement, which I'm not going to read, because you can read it when you want to, I have some ideas in here. Some of these ideas, again, come from other agents, some of whom are more experienced in intelligence than I am. And then some of them are my own ideas. I am the legal counsel, so some of the legal issues are things that I've seen as an issue that have arisen in the past few years.

And you can read that at your leisure, and if someone wants to ask me a specific question about any of those, that's fine.

I guess what I can go on maybe beyond what Director Mueller--I guess what I'm going to try to do is--the FBI made mistakes prior to September 11. I made a little mistake. If you look at my letter, I made a mistake on the first page, I got the date wrong. It was August 16. I mean, I proofread it once, and I missed it.

We all make mistakes, and I think that there are other levels of our criminal justice system, there are other federal agencies I'm not going to talk about, but there are also the prosecutors, when you try to go criminal. There's entities in the Department of Justice and to some extent I've, kind of, broadened some of what I've written in my statement to include those other criminal justice entities that--you know, the FBI is real important, but we certainly--there are certainly other entities that are very important here, too.

I was also encouraged--I don't know if anyone asked a question about it today, but when I read Director Mueller's statement he points to integrity--I think it's the last page also--and he does point to that as an issue. And I'm very encouraged by that, because, of course, if you look at the end of my statement, I think integrity is extremely important.

Some of the people this morning did ask questions about how are we going to effectively combat terrorism. We are going to be in a proactive environment, which definitely has the potential of maybe interfering with people's civil liberties, and how are we going to still protect those civil liberties. And I honestly think integrity really plays into this whole item.

When you're asking for some new law or new authority, it's perhaps not only what the law allows you to do, but it's how it's going to be done. And then it really boils down to an issue of trust with the agency or the entity that you're giving this particular power to.

And there are potentials for abuse, if you go over that line, and I think as an agency we have to be so completely truthful and honest that people are able to trust the FBI that we will not cross those lines and commit any kind of civil rights violation or collect too much information, et cetera.

That basically is all I want to say, and then if anyone has a question from my statement.

LEAHY: Ms. Rowley, we will. What I'm going to do now, we have about four minutes left in this vote, I'm going to suggest everybody go and vote. We'll stand in recess for a minute, or the amount of time it takes, come back. And that way we'll be uninterrupted. Thank you.


LEAHY: Agent Rowley, you may be interested in knowing--and I haven't even had a chance to share this with Senator Grassley.

A copy of this has gone to Senator Hatch.

Dan Bryant (ph) at the Department of Justice has sent me a letter, following a request I made, assuring both me and Senator Hatch there will not be any retaliation against you in any form for the letter you sent to the FBI director. Of course, that would also extend to the testimony here.

I will put this letter to Senator Hatch and myself in the record. And Senator Grassley and I both notified the attorney general and the director that we would be following this matter carefully, any way.

Let me ask this question of you. And I asked this question basically to Director Mueller this morning, so I want to ask you as well.

To your knowledge, did the agents in Minneapolis or at headquarters, for that matter, ever try to do a routine search for reports on aviation schools or pilot training on the automated case system? I'm not talking about putting in somebody's name, but for search words like "aviation schools" or "pilot training." Did anybody do that?

ROWLEY: Well, I know a little bit about our ACS system and the records we have, as well as the search methods we have, because I also do our Freedom of Information requests. And, of course, there are strict rules in place about how we search and when people write to us, you know, if we find their name.

Our main system of records, our central records system is indexed according to the name of the subject, usually. So for instance, in a case where a particular suspect was named, the normal method of searching would be to search that name only. We do have the ability to search some text for a word. But unlike, for instance, if you were doing Lexis-Nexis research, you can put in the qual (ph) and/or and there are all different ways that you can search.

Our FBI search is probably the most fundamental, rudimentary thing. You can just put in a word. So, for instance, if you put in "airline" to do a text retrieval, you would get up such a volume of records that it would be impossible to review. It's almost impossible to do just a one-word text.

LEAHY: You can put in "aviation schools"?

ROWLEY: For instance, in Lexis-Nexis when you're searching for things you can put those qualifiers in that narrow it down. And we have no way of doing that. We can a word in.

LEAHY: You can put in "aviation"?

ROWLEY: I think we could.

LEAHY: But you couldn't put in "aviation schools."


LEAHY: So you might get...

ROWLEY: What you get in "aviation" and you would just be getting, you know, records that you couldn't possibly review.

Now, what the normal method is, is we do search those names. And that's because the subject's names are indexed. So Freedom of Information that's what I do. And I think he mentioned that you have to have the correct spelling, that's right. I mean, if you're one letter off, you may not turn up a record.

LEAHY: But this doesn't do you much good if you're looking for somebody, for example, used nitroglycerin in types of bombings, and is going around with an alias, which changes bombing to bombing.

The director said in his testimony that your office couldn't have brought up the Phoenix electronic communication on the computer and used it in connection with the Moussaoui case, but the headquarters could have done that. Is that your understanding?

ROWLEY: I don't know specifically about that EC, but I do know that prior to September 11 a number of classified documents--probably almost all classified documents were blocked. So that only certain people on a need-to-know basis would be able to--if you went into the computer, for instance, and you didn't have that access you're not going to be able to see those things.

It was also in public corruption cases, other types of cases that we had this blocking. And it served a good purpose in a way, because, you know, it really keeps people, maybe, from abusing it.

LEAHY: I mean, suppose you're a cleared person. The head of your office, head of the Phoenix office and others, they want to do a computer search on the FBI ACS computer network. It's still difficult for them to do; is that correct, even if they're cleared?

ROWLEY: That's true. I don't know exactly how this blocking--you know, what people in each office were unblocked and which weren't. Typically, it was the people who had a need to work on that case only.

LEAHY: Unfortunately, some of the people who may know something about it are not going to be able to go much further.

You wrote that a supervisor at FBI headquarters made changes to the Minneapolis agent's affidavit. I'm talking about the FISA process now. You wrote that they made changes to the agent's affidavit to, quote, to use your words, "set it up for failure."

Now, the New York Times has also reported that another headquarter's agent was basically banned from the courts, from the FISA courts by the judge based on his past affidavits. I know that in response to some of these problems, the FBI has instituted a so-called Woods procedures. And we put that in the records. It's been declassified and put in the record this morning.

Do you think some of these problems with the FISA court made headquarters more cautious, risk-adverse and process in the FISA applications to the court?

ROWLEY: I've never actually served at headquarters, so I guess I would be speaking from hearsay, as well as, maybe, the opinions of some of the people that have called me and e-mailed me.

I think that when incidents occur where people in the FBI are disciplined or even investigated, possibly, I think there are some consequences to that. And it does, in the future, make them much more careful.

In the instances that I'm aware of in our office where that's happened we have typically--in order not to repeat the problem, we've instituted some kind of procedure that makes it more difficult. So I think that, in a way, you know, from what I know of it--and, again, I've never served in headquarters--that I would probably agree.

LEAHY: You also wrote that you and the agents in Minneapolis were frustrated with the headquarters agent that was assigned to the Moussaoui case. It actually hindered your investigation. Did you or any other supervisor or agent in Minneapolis call--the agent you were concerned with call his supervisor or others in Washington to complain about this before September 11?

ROWLEY: I'm, of course, a little bit restricted in what I can talk today about the events of pre-September 11. I had put that in my statement. I failed to mentioned it earlier. When I comment, I'm going to try to comment in a general way...

LEAHY: I understand.

ROWLEY: ... and just avoid the specifics of the events prior and not get into true, real facts.

When I wrote the letter to Director Mueller, I think some of the news accounts may be misunderstood. I really was speaking more from a third-party perspective in talking about what I saw our agents and other people in our office, as opposed to me personally.

There was a word in the first page, I said I had a peripheral role, and I think that's very accurate. I did have a role, but it was peripheral.

And when you ask if other people took these actions, you know, I will say this. We have a culture in the FBI that there's a certain pecking order, and it's pretty strong, and it's very rare that someone picks up the phone and calls a rank or two above themselves. It would have to be only on the strongest reasons. Typically, you have to pick up and call--you know, pick up the phone and talk to somebody who is at your rank. So when you have an item that requires review by a higher level, it's incumbent for you to go to a higher-level person in your office and then for that person to make a call.

LEAHY: Has the inspector general talked to you about this case?

ROWLEY: I've had a call from the inspector general, but so far we haven't gotten into any real facts or anything.

LEAHY: And when did he first contact you?

ROWLEY: I was contacted by an investigative counsel from the Office of Inspector General, and that's all. And it was basically just to introduce herself.

LEAHY: And how long ago?

ROWLEY: It was last week, I think just a day or two after Director Mueller announced that it would be turned over to the Office of Inspector General.

LEAHY: Thank you. And you have raised an important issue also about the so-called McDade law in your testimony. As you know, that law was slipped into a massive omnibus appropriations bill, or some of us call it ominous appropriations bill, back in 1999.

Senator Hatch and I and Senator Wyden have been trying to fix this problem. In fact, we introduced, what was it, S. 1437 to fix the problem.

I want you to know, there are some of us on the committee that recognize it is a problem, and Senator Hatch and I are trying very much to fix the problem. We'll keep trying. Eventually, we hope we're going to be successful.

We came very close. We thought we had it fixed in the USA Patriot Act, but others didn't want it to go forward (inaudible). But I'm committed, and I think I can speak for Senator Hatch, he's committed to get it fixed.

Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

I want to welcome you to the committee, Ms. Rowley. And at the outset I wanted to thank you for appearing before the committee.

I also commend you for your letter of May 21 to Director Mueller. That letter raises a variety of significant issues that need to be considered during any reorganizing of the FBI. And I can only imagine how difficult it was for you to write the letter and then forward it to Director Mueller and others. So I want to ask you a few questions to clarify some statements in the letter and to seek your views on aspects of the specific reorganization plan.

I believe the FBI is the most important law enforcement agency in the world, and I know you do, too, and that's why you wrote the letter. And you'd like to have it continue to be a great agency.

But in your letter you detailed the difficulties you and the Minneapolis agents encountered in seeking a search warrant under the Foreign Intelligence Surveillance Act procedures--we've been referring to that as FISA all day. With the FISA and your legal training, what modifications do you believe may be warranted to the FISA statute in order to enable the FBI to obtain such approvals when investigating terrorists?

ROWLEY: Well, I heard some of the discussion this morning about the necessity to perhaps take out the "working on behalf of a foreign power" aspect. In thinking about that--and to be honest, I haven't thought about it a whole lot, and in addition, I have not had that much personal experience in working with the FISA process. Our office is not as involved as other offices would be.

However, I think, in a way, just knowing what I know about criminal and totality of circumstances, et cetera, I am not quite sure that it needs to be modified. I think, in a way, perhaps what we have is, because probable cause and proving or making these showings that are required are not like a DNA test, they're not a litmus test; you can't put it in and have it come out 100 times the same way.

And what can happen is, mindsets and over time different interpretations, and you can have something becoming unduly difficult, when you actually look back maybe 10 years ago, this wasn't the case. And there was, basically, a lesser standard.

I think when you look at the totality of the circumstances and probable cause, you are looking at more probable than not. I'm not even quite sure if the FISA--well, I think FISA statute requires it as well, more probable than not.

And I think that if you look at a totality, if someone is working on behalf of a foreign power, these terrorist entities are not like countries. They don't have embassies. They don't send us their membership lists. They don't send us their little organizational charts.

I worked Mafia cases in the 1980s, and the Mafia didn't do that either. They didn't send us their membership. We had to figure it out. And after a few years, we certainly did have hierarchies of each organized crime family, but that was gained from surveillance, it was gained from little snippets of information we would get from wire taps, that so and so is working for so and so.

And I think that we should be able to use that same type of thing for demonstrating that someone is working on behalf of a foreign power, especially with a terrorist organization.

And I'm not sure that the language needs to be modified, but I think we need to realize that it's almost the same type of thing that we're up against. We are not going to get concrete membership lists, organizational charts that we can say OK--or even the definition of the group, sometimes. These groups are very amorphous, and by nature, terrorism groups operate more effectively without having real defined hierarchies and who reports to who, et cetera.

So that's kind of my take on it.

HATCH: Of course, to a large degree, we're talking about surveillance, and unless you can show that they are operatives for a foreign power, or that they--you have probable cause to believe that they are part of Al Qaeda, say, in this particular case, you can't get a FISA right to surveil.

And see, that's what I think is--and many people are concerned on the other side that if we grant that broad right, then it will be misused sooner or later by somebody who would not be as perspicacious as you are or Director Mueller is.

But I see it as a big problem because, as you can see, we basically couldn't get surveillance on, I think, basically all of those 20.

ROWLEY: I'm not going to comment on all of the facts of the case. My analysis of the case is that perhaps that it already--you've read my letter.

HATCH: Right.

ROWLEY: I think that it's an obstacle, and I think maybe it's a possibility to consider whether maybe that amount or that threshold should be somewhat eased, especially in cases with terrorists where it's hard to--but I think things like surveillance and knowing who met who and things like that should figure into it.

HATCH: All right. Agent Rowley, since your letter of May 21, the attorney general has issued new investigative guidelines that will expand the FBI's investigative tools. Now, given your experience in the field, can you describe in practical terms how will these new guidelines assist the FBI, at least the field agents, in carrying out the FBI mission--or missions?

ROWLEY: I have not had a chance to really, fully read the modifications. I have heard what the three--you know, the main topics that have been brought up about going into public meetings and surfing the Net. And there is one additional thing, I think, in those AG guidelines, which delegates down the SAC, the ability and the authority to open up a case, a preliminary inquiry.

To the extent that I am definitely, and I think we, the rest of the agents I've heard from, are definitely in favor that, when it's possible, to delegate down to a lower authority level, we will be more nimble and agile. I am very much in favor of that ability to open up a preliminary by the SAC. That aspect's good.

I do want to maybe, at some point, get the chance to talk about how--I know people this morning were talking about their fear that some of these new abilities to monitor public meetings. I have a little unique insight because I process freedom of information cases, and I read some of our old files from the 1950s. And I will see in there where we got--the people back then, for a lot of reasons, got a little carried away. When they went to a meeting, they recorded everyone who came, whether they were important or not, whether the person advocated whatever, you know, a terrorist point of view or whatever. And I see that type of thing that happened in the past.

What I think that we need to do is--a lot of it is in the how. And if you go to a public meeting, for instance, maybe we've gotten a little bit of information that someone in that meeting might be discussing a terrorist act. I think it is very good and logical that someone would go and sit in just to make sure that doesn't happen. So if, in fact, a person stands up and says, "Hey, let's all do this, let's all undertake this," and gives a speech about undertaking an act of terrorism, we will now be in a position that we will know it.

Now, if that same agent, even based on a good tip, goes to the meeting and people are merely engaging in their First Amendment rights, here's the thing, nothing happens from that information. That's the difference in the '50s. We don't come back and record who was there. We do not look into the people that were there. It just ends.

I think there is a difference between how we do this and exactly what the authority is. And I think, to the extent that it gives us a little bit of extra opportunity to perhaps detect something, I think it would be good.

HATCH: In your May 21 letter, you indicate your concerns about Director Mueller's proposal to create, quote, "flying squads," which would operate out of FBI headquarters here. Could you tell us more specifically your concerns about such squads?

ROWLEY: When I wrote the letter to Director Mueller, the term, and maybe it was the media that used this term, but the term that was being used was "super squad."

And that connotates in my mind that we're going to have more people at headquarters who now, when, let's say, an office does detect some terrorism, or an actual terrorist event occurs, that now we'll get a whole contingent of managers from headquarters who will direct the case.

And when that term was first used, I, again, by hearsay, I think that's what a lot of people in the FBI had that connotation. It was a major impetus for my giving that letter to Director Mueller.

HATCH: I understand. Now, just one last question, because my time's about up.

In your testimony, you've identified a number of significant problems with the FBI's bureaucracy. You stated that, quote, "the problem is huge," unquote, and, quote, "cannot be quickly cured," unquote.

Now, in your view, what immediate steps could be taken to remedy some if the problems that you've identified in your letter? And which problems will take more time to address?

ROWLEY: You know, that is the $100 million question, how to reduce bureaucracy. And I really can't pretend--give me another week? I really can't pretend to understand.

I know Director Mueller is also very cognizant of this problem. He reiterated today that there are eight levels before you get to him. This is an unwieldy situation.

If there is a way to somehow reduce the levels, I think that's the way we need to go. Seven to nine levels is really ridiculous. And it's just, how do we do this once it gets started?

HATCH: Well, I'm grateful for your testimony, grateful for your letter, and I think you've done a service. And let's hope that--and I think Director Mueller has taken it very seriously.

ROWLEY: I agree.

LEAHY: We're going to take a three-minute break. I wonder if the senators could all meet with me out back. That'd also give the photographers a chance to clear. And we'll be right back.


LEAHY: OK. Thank you.

Thank you, Ms. Rowley. You've been very patient.

And I want to turn to Senator Feinstein, who is actually doing double duty on this investigation, like several members on both sides of the aisle. Traditionally, just so you know, the Judiciary Committee has always had some members from both sides on the Senate Intelligence Committee, as does the Armed Services Committee and the Appropriations Committee, for the obvious reasons, because those are the Armed Services--and Foreign Relations is the other one. Foreign Relations, Armed Services, Appropriations, and Judiciary. We handle classifed material all the time, so we have members on the Intelligence Committee. Unfortunately, we're meeting and they're meeting.

Senator Feinstein has somehow managed to be in both places at once, and so I yield to her.

FEINSTEIN: Thank you very much, Mr. Chairman.

Ms. Rowley, welcome. Delighted to have you here, and we thank you for your letter and for your comments about your career in the FBI and your concern about it.

You indicated earlier that you were watching this morning and the testimony of Director Mueller. I asked my questions really based on some of the things you said in the letter to the director, and one of them involved the FISA process. And without going into the details of it, you indicated your concerns in the letter about the FISA process. And I think Director Mueller put on the record the very clear way in which these FISA warrants are going to be processed in the future and the question of intelligence also being added in the warrant request.

My comment to you was, do you believe--or my question of you is, do you believe that this is a substantial improvement now over the way things were?

ROWLEY: Yes. And in my written statement, too--I think September 11 alone, just the acts, really created a huge change in mindset. And in addition to that, of course, Director Mueller has announced that prevention will be our goal over prosecution. Prosecution, I think, should still be an important thing that we should keep in mind, but there are those instances. And when you have the two, prevention definitely has to override.

I think that what he is stating, that if there is an application that someone at a lower level disputes or does not think should rise up, it will then automatically get reviewed at a higher level...


ROWLEY: Right now by him. I'm not quite sure that maybe it could even be lower than him, because I think he's a busy man, and I don't know that it would necessarily have to be the director...

FEINSTEIN: And that these would go then to the OPR, as well, which...

ROWLEY: Right. Well, obviously it would depend on his review. He may well agree with the lower level, and that would be fine.

We do need, though, as I said in my statement, we need a kind of a way to get around the roadblock. And I think with the FISA's process, this is a pretty good idea to have the ones that are not approved, or disputed, to go to a higher level for review. Obviously the higher level may well agree that it's insufficient, and that's fine, but at least it's had a good review.

FEINSTEIN: Right. And the second area that I asked about was really in direct reaction to your comments in your letter about what you called the super squad, which he has pointed out very carefully today was a flying squad, and that the local SAC would have the authority to initiate the first inquiry.

ROWLEY: The flying squad, again, the kind of the difference that I see there is that with a small office, that does not have translators, does not have enough forensic computer examiners, perhaps does not even have enough surveillance experts, that if an office had that need to have those additional resources, a flying squad could come and help out. It would really serve the purpose of flexibility.

And if they didn't try to take over and micromanage something that may already be at a certain point, stage along, I think it is a very good idea. The only thing that I was really worried about was the fact that I saw this as managers coming to now take it over and micromanage or whatever. That's the distinction.

Thank you. Now, in your letter you also mentioned, and I quote, "a climate of fear which has chilled aggressive FBI law enforcement actions, decisions." And you attribute that to the fact that numerous high-ranking FBI officials who have made decisions or have taken an action which, in hindsight, has turned out to be mistaken or just turned out badly have seen their careers plummet and end. That was, you know, a very profound statement.

I want you to respond to that, but I also want you to respond to something else. And here's something which is enormously controversial, and which has--no matter who you talk to, everybody has got a slightly different view of how racial profiling should or should not be applied, and exactly what it is, whether it involves a country, whether it involves a race, whether it has a chilling effect on FBI agents instituting this kind of inquiry.

I would be interested in your observations, if there are places where you believe you have actually seen racial profiling impact or chill an agent's perspicacity or desire to look into something?

ROWLEY: Do you want me to answer that one first, the racial...


ROWLEY: I think one of the senators this morning drew a distinction. Of course, racial profiling--we don't even like the term or the word, because I think it already has this pejorative sense, and different people have different meetings in their own mind as to what it means.

FEINSTEIN: I agree with you.

ROWLEY: One of the senators this morning made a good--I think it was a good line. When you use race, ethnic origin, religion, any one of those factors as a sole reason or the main reason to take an investigative action, that is what I would think of as racial profiling. So if a trooper goes out and stops all Indian males going down the street, that is racial profiling.

Now, on the other hand, what you have are--we could get a report that black male with a red baseball cap wearing white trousers and sneakers just robbed a bank. And you don't disregard the race, because it's just one of several factors that is describing that individual.

So I think that's kind of what I see as the difference here between--courts, I think, follow that rule.

FEINSTEIN: Do you think your colleagues have the same interpretation that you do? Because I think you have a very substantial interpretation.

ROWLEY: Well, the ones I train do. I'm trying to think if I brought this up in other law enforcement circles. I think in Minnesota it's been a very hot topic. And to the extent that it's been discussed, I've tried to point this out at different times.

A lot of times you see people arguing when they're not even hitting the issue because they have different definitions. And I think the senator's remarks today kind of show that maybe this kind of thing is rising, where people are getting this better understanding of what is permissible, what is logical and common sense, and then what is improper. And you use the term, it's just a pejorative term and then people, like, end the debate.

FEINSTEIN: I see the red light. Could you go to the first part of my question, which is the quote?

ROWLEY: The climate of fear?


ROWLEY: I think that, you know, as I said in my letter, that these high visibility demotions, or even people ending their careers, have impact, and everyone sees this. There are times when that results in less-than-aggressive law enforcement.

There are actually times, though, I think it actually is the opposite, because your boss, for instance, could be making a mistake the other way. And let's say that your boss has said something that you think could be--I'm just using the example now--it comes close to racial profiling. Now, if you're under that boss with this climate of fear and whatever, you might actually be unwilling to challenge that. So I think it can actually work both ways.

And I definitely think it results in less-than-aggressive law enforcement when we've had some high-visibility mistakes. And in my paper I drew a distinction between those mistakes that are really kind of deliberate or made for selfish reasons--and I think our people need to be held fully accountable for those types of mistakes. Whereas the good-faith-type mistakes--I get involved in civil suits all the time. And we're humans, FBI agents are humans. We make mistakes all the time.

In Minnesota, once, we made a mistake and had the wrong guy arrested for a bank robbery because he was a complete look-alike of the real bank robber. And, you know, that type of thing we ought not to--you know, that agent really did nothing wrong. You know, everyone would make that mistake.

So I think we have to distinguish between the types of mistakes and be careful about pursuing the ones that really are good-faith ones, because I think we will have some repercussions for that.

FEINSTEIN: Thanks. My time is up. Thank you very much.

Thanks, Mr. Chairman.

LEAHY: Thank you, Senator Feinstein.

Senator Grassley?

GRASSLEY: I want to follow-up on what Senator Feinstein just was talking about.

I've been concerned for a long time about what I call the FBI's culture of arrogance. In your letter, you mentioned a culture of fear, especially of fear of taking action, and the problem of careerism. Could you talk about how this hurts investigations in the field, what the causes are, and what you think might fix these problems?

ROWLEY: Of course I don't think this happened overnight. It's one of those things that starts to happen and eventually you get at a point where it's--you know, it's not good.

And I think careerism, when I looked up the definition, I really said unbelievable how appropriate that is. I think that the FBI does have a problem with that. And if I remember right, it means promoting one's career over integrity. So when people make decisions, and it's basically so that I can get to the next level, and either it's not rock the boat, or do what a boss says without question, and either way that works, if you're making the decision to try to get to the next level, but you're not making that decision for the real right reasons, that's a problem.

And I think that in the FBI, we have had some serious disincentives to getting into management. We've also had some of our promotional system I think could be adjusted; there are some standards that we've gone to, kind of, a real low level of legally defensible.

It's become, over the years, kind of, a volunteer system. Because a lot of good, good people that have good backgrounds prefer not to transfer all those times. There's a lot of other reasons.

So I think that the careerism is a problem. I think the pecking order, which I alluded to earlier, is sometimes a problem, and we have to be willing to--I guess as Director Mueller has done a little bit in this case with me, when I made my critical remarks, I was quite worried, because I know in the FBI, you don't venture close to criticizing a superior without really running some risks.

But in this case, actually, I was pleasantly surprised that, you know, I've been promised repeatedly, no retaliation, and I want to hopefully hope that that kind of atmosphere now starts to, kind of, take over. And that people make decisions. Some of these decisions are just huge; you don't even know when you're doing it, but they are huge, and you've got to make them for the right reasons, not because they don't want to rock the boat, not because they don't want to bring up a problem to my supervisor, et cetera.

GRASSLEY: I think it would be helpful to hear about headquarters, FBI, from the perspective of your working in the field. Your letter to the director about the Moussaoui case talked about supervisors actually hindering that case. Now, I know that you can't talk about that case because of trial, and I appreciate that and expect you not to, but it would be useful to talk about how headquarters gets involved in cases from the field, and what you and other agents think of headquarter involvement, and whether the people there are helpful or a hindrance.

ROWLEY: Well, I mentioned in my letter, because I'm legal counsel in the office, I interact a lot with our Office of General Counsel. And for the most part, the people in the Office of General Counsel that I interact with on a daily basis are very helpful. I think they mostly see their mission as assisting people, giving advice, that type of thing.

Our laboratory, I think, is something like that as well, because their mission is to do that task so they can get it back to the field.

Other entities are less helpful at headquarters, because they do not see their mission as assisting in the investigation. When we get these seven to nine approvement management levels in place at headquarters, many of those people see their job as, kind of, a gatekeeper function, and, kind of, a power thing or whatever.

And again, I think we have to stress that, you know, to the people, if we can limit the number of management levels, all the better. But the people, if they realize that their function is to assist with intelligence in the future, hopefully this will happen. If we have more analysts, if they see their function as assisting that investigation. And I think then it's helpful.

So it's, kind of, a mixed bag is I think what I'm saying. It's, kind of, a mixed bag, and some entities are helpful. Others maybe aren't quite as what they should be.

GRASSLEY: Well, could you, kind of, summarize that by saying--or let me summarize it and see if this might fit it? Headquarters ought to be helping people at the grassroots and not be a hindrance.

ROWLEY: I think that's true. And the worst is--I forgot to even mention, the worst is micromanaging. And there have been instances in the past where a higher level in the FBI has almost decided to tell an office how to do something. And I can name a few cases where these just became disastrous. So micromanaging from a higher level is really the epitome of what would be the worst.

GRASSLEY: I don't think you have to name those cases; we've looked into those an awful lot here in the last decade.

Your letter highlighted some of the problems within the bureaucracy at the FBI headquarters with the many layers of approval in order to get a search warrant. What are your recommendations for streamlining this bureaucracy so that field agents can effectively pursue investigations?

ROWLEY: Well, I've mentioned before that the bureaucracy is a huge problem, and I really have to think longer about, you know, how that would be remedied.

I can mention one other thing about streamlining, being able to go around road blocks that might arise, and I've mentioned internally in the FBI, if we're pursuing a FISA or an intelligence method, it should also be recognized that we can pursue terrorism on a criminal level. And we can then go across the street to a U.S. Attorneys' Office.

And I think a similar mechanism perhaps needs to be considered also for U.S. Attorneys' Offices. It's not a terribly different when you go and say, "Here's why I think I have probable cause," to an assistant U.S. attorney.

In my writeup, and thinking about this, it's, kind of, analogous to a person who gets diagnosed with cancer, or with a serious illness, they always try to get a second opinion. And it's accepted in the medical profession. But in the legal profession, for some reason, it's not that well accepted that if you get an answer from an assistant U.S. attorney that you possibly have a way to have it reviewed again, or have it reviewed by an expert in the field.

And I think that we should maybe consider that for the Department of Justice to have--I don't like really super squad, but maybe a cadre of, also, prosecutors that have experience with terrorism, that in the event that we were trying to pursue it criminally, we might be able to have a second way around a roadblock that way.

GRASSLEY: OK, and my last--is my time up? My last question is that we heard quite a bit about how the answers are somehow solutions to problems that the FBI seemed to be more computers, more money. Not the first time that we've heard that supposed solution to problems at the FBI, or for that matter, a lot of other government agencies. How much do you believe more money and more computers will solve the problems at the FBI or are there other, more important, changes that need to be made at the FBI?

ROWLEY: I think upgrading our computer system would be nice. The capability to do these kind of searches and pull up related information would be nice.

I have, in my statement today, actually suggested a number of things that really don't require a lot of money. Upgrading our manual to give clear, concise guidance to agents working intelligence is not going to require huge sums of money.

The idea of--I have to look at some of the things, some of the law, if we can possibly toward the end--some of the legal changes I've mentioned there could be problems.

The development of maybe a Department of Justice cadre of professional expertise.

I have a few ideas that it seems that they really don't cost a lot of money, and I think that they should be considered in addition, perhaps, to upgrading the computers.

The hiring of new agents always, of course, entails money and funding, and I'm not really in a position to comment whether we're adequately staffed. I think that the new measures to hire additional translators is very good.

GRASSLEY: Thank you. Thank you very much.

LEAHY: Senator Cantwell?

CANTWELL: Thank you, Mr. Chairman.

Agent Rowley, thank you for being here, and thank you for your service to our country.

Your memo to Director Mueller said, quote, "I do find it odd that no inquiry whatsoever was launched at the relevant HQ personnels and their actions, and despite FBI leaders' full knowledge of all the items mentioned herein"--basically talking about the events of September 11, the information that was on the Moussaoui case in the Phoenix memo--"the SSA and his unit chief, and others involved in headquarters personnel were allowed to stay in their positions, and what's worse, occupy critical positions in the FBI's SIOC command center, post-September 11."

Then you go on to say, "I'm relatively certain that if it appeared that a lowly field office agent had committed such errors of judgment, the FBI's OPR would have notified to investigate the agent and would have at least quickly reassigned him."

Now, I know you're not going to comment on that, but you do in your testimony today talk about management of intelligence, which I think is more or less what you were getting at in that particular statement in your letter to the director; that perhaps there had been a mismanagement of information analysis and processing.

In your recommendations, your recommendation number five, you say that management of information should be, I'm paraphrasing, improved. But specifically you say, centralized information is required, however it must be properly analyzed, evaluated and disseminated in a timely fashion to the field.

And you also say recently that state and local officials, as well as the media, have frequently received more information than the FBI field divisions.

So how do you think that we address that in the reorganization that's been proposed so far by the FBI? And I know you're talking about reducing the layers, but what is it specifically that needs to be done to better process information at headquarters?

ROWLEY: Well, we've already discussed the computer. That would probably help somewhat, again, for an analyst to have the ability to go on the computer and then be able to put in "flight," "airline," or whatever it is, and draw some intelligence together. So I think that probably would help.

We need professional analysis of the intelligence we already have. I think Director Mueller is talking about an intelligence--I'm not sure of the title, but it's something with intelligence. And the way I've perceived that is basically this is a group of people who conduct, put together reports, or conduct that request. If you have an issue or a question, that they then can produce that intelligence that might add on to an affidavit or whatever. They may well entail--requesting field offices to conduct certain investigations, to be in, kind of, a proactive mode.

That if they get two offices sending in something that looks like, "Oh my gosh, we ought to look into this," that we have a group who is in charge of analyzing and looking at these things so that we don't have two things coming in three weeks apart and not even being able to put it together.

CANTWELL: Is that somebody's specific responsibility today, or several people?

ROWLEY: Well, I think at the present time, it's not done very well, I really don't. And I think that, you know, creating--and Director Mueller is starting to do that, I think that we don't have it now, and I think that this group, hopefully, would be there--function as an assisting thing to the offices that develop something, or when they make a request.

CANTWELL: But when I look on this org chart of an Office of Intelligence, it doesn't strike me as a flat organization that you seem to be more describing.

You're talking about information that's easily processed and driven back to the field. And to me--no surprise, that's where most of America is moving, in the corporate world, to flatter organizations, because information flow is so critical. And it seems to me that you're describing a similar need. But I'm not sure I ...

ROWLEY: I haven't seen that chart. That's the first time, when you held it up. And when I made my first comments today and I mentioned that many of Director Mueller's ideas seem to be consistent with what my initial letter was, I see maybe a slight difference, and that is I really think we should scrutinize--exactly when you held it up, it just hit me--we really need to scrutinize all of these proposals for this problem that creeps in of having these various levels.

I think that the flat lining, and if there's a way to reduce these levels somehow, we have to look at each thing and say, why create more? It's not going to be an answer. And if I have one little slight difference, that was the impetus for my first letter, really it was.

CANTWELL: Well, I happen to agree with you, that we're talking about more information flow here, and the thing that seems to be missing is the processing of that information and the quick distribution of that. And we're only going to get more, given the type of attacks that we're monitoring.

Not to catch you offguard, but I am curious. Tonight, the president going to make an address about somewhat of a reorganization, and some of the descriptions of it--we don't know what he's going to say yet, but some of it, you know, his own press secretary said that the department may be responsible for border security, intelligence and other functions at several federal agencies that it now supervises. It wouldn't replace the FBI or CIA, but it might be one of the biggest restructurings that we've had.

What advice would you give the president about this?


ROWLEY: I really can't presume to give advice at such a high level.

I will say one thing. In the past when we've had different agencies where there was some overlap in their jurisdiction--the things that come to mind are FBI, DEA, because we share drugs; sometimes FBI and ATF where there was bombings that we kind of both got involved in--if you have two different entities and there's an overlap, and it's not clear who does what, we can have some friction starting up and we can have some problems.

So that's the only thing that comes to mind, is that it has to be kind of clearly demarked, so that the agencies don't develop this friction and we're not at cross-ends with each other. So if there's a new agency starting, which it sounds like, that's the only advice that I can think of.

CANTWELL: Well, I read in your statement that you didn't expect your memo to create such a furor, but thank you for stepping into the spotlight and giving this issue the needed attention.

Thank you, Mr. Chairman.

LEAHY: Thank you very, very much, Senator.

Senator Specter.

SPECTER: Thank you, Mr. Chairman.

Agent Rowley, we thank you very much for coming forward. It is obvious that it was very difficult to write the letter which you did, and it is filled with passion. You were really very concerned, a word you used repeatedly. And your purpose was of the highest, and there are obvious risks which you undertook in coming forward.

I'm confident, at this point, that the FBI and the Department of Justice will honor the commitments which they have made, and if they don't, I know that this committee is prepared to make sure that they do.

I think you performed a great service for the FBI, because after Director Mueller's first response, which was unresponsive to your memo, he did come forward and articulate an acknowledgement of the problems and then move correct them, which is indispensable.

And we've said repeatedly that we're not interested in finding fault, we're interested in seeing to it that if there's a recurrence and you have all of these indicators, that you put them together and you read a road map which is there on an analytical basis.

I understand your limitations as to what you can testify to about a case. I spent a dozen years as an assistant DA and as a district attorney, and have some appreciation for what prosecution requires and what the limitations are.

But in trying to understand the mentality of the FBI--which, I think there is general agreement, has to be changed--I was intrigued by your characterization that the United States attorney's office--for a lot of reasons, including just to play it safe--in regularly requiring much more than probable cause before proving affidavits, maybe, if quantified, 75 to 80 percent probability or sometimes even higher.

Can you give us some insights as to why, so that we might approach the issue as to how we change that attitude?

ROWLEY: Well, in some ways, maybe that could be misinterpreted. I think actually there are cases--playing it safe has kind of a negative connotation, but playing it careful, or being careful or meticulous, doesn't.

And I think there actually are cases, I think, many times, in white-collar cases, for instance, when you really want to be extremely careful, public-corruption cases, these types of things where you really want to be careful about proceeding, that it might well be appropriate to require something more than 51 percent.

SPECTER: Well, I can see if it's a prosecution, perhaps. But if it's an investigation, it's very different. I think the FBI has to change the approach to case preparation to investigation.

But even on the quantum of proof, referring to Illinois v. Gates, which I mentioned to Director Mueller this morning, a 1983 Supreme Court decision, opinioned by then-Justice Rehnquist. He points out, going back to Locke v. United States in 1813, referring to the term "probable cause," it imports circumstances which warrant suspicion.

More recently, we said the quantum of proof appropriate in ordinary judicial proceedings are inapplicable. Finally two standards, and then he refers to preponderance of the evidence useful in criminal trials have no place in the magistrate's decision. So that Justice Rehnquist is pretty explicitly saying that it's not a preponderance of the evidence. It's not more likely than not. That it is, and he quotes Marshall--pretty good authorities, Chief Justice Marshall and Chief Justice Rehnquist--talking about suspicion.

So that one of the things that we're going to be looking forward to, and I have discussed with the chairman, the issue of pursuing this trail (ph) through the Foreign Intelligence Surveillance Act to find out.

Let me go to another point which you raised in your exhaustive letter, and that referred to the issue as to Zacarias Moussaoui. And I'm not asking you about evidence now. We're still on the Foreign Intelligence Surveillance Act issue. Where you pointed out, quote, for example, "at one point the supervisory agent at FBI headquarters posited that the French information could be worthless, because it only identified Zacarias Moussaoui by name, and he, the special agent at headquarters, didn't know how many people by that name existed in France."

It's extraordinary. Zacarias Moussaoui is not exactly a name like John Smith. And after you tracked it down, going to the Paris telephone book, you noted here that the special supervisory agent at FBI headquarters, quote, "continued to find new reasons to stall."

And here we're looking at what we have to do to have a sensible response from FBI headquarters on an application under the Foreign Intelligence Surveillance Act. Can you give us any insights from your experience, which has been considerably painful, as to what we might do?

ROWLEY: In my statement, I talk about roadblocks and basically in that, in my statement, I'm addressing in criminal cases. When you first talked about probable cause, and we all know there's no perfect test for it, what I think has happened in years we have adopted certain mindsets from judicial rulings or what might be the prevailing mindset in a U.S. attorney's office. And I think what we do see are elevated standards in some cases.

And one of my recommendations is that we have a sanity check, a second opinion, somebody else that we can maybe try to reason with. I really think it should be outside a particular U.S. attorney's office, because what can happen is that, you know, people are all kind of--the careerism or whatever can be a problem there, too.

In the FISA process, Director Mueller has proposed the same type of thing internally in the FBI, and I think his idea will definitely have results. How many people--OK, if you don't approve it and now it has to go up with our kind of attitude about having to take it up, how many times--I think it might actually, the pendulum might actually might swing the other way too far.

So I think that in the FISA process the proposal that it will be reviewed at a higher level if it's not handled, I think that's already there.

SPECTER: Well, the review--my concluding comment would be that the review is not really adequate unless you have a standard which meets the legal requirement but doesn't impose a burden, which is impossible. We changed the Foreign Intelligence Surveillance Act in the Patriot legislation to add the word "significant," to a significant purpose of the surveillance is to obtain foreign intelligence information.

And after we investigated Wen Ho Lee, the subcommittee which I chaired, we came forward with a recommendation that when a high-level officer of the FBI like the director took the issue to the attorney general, the attorney general had to give the reasons coming back, because the Attorney General Reno personally turned down the FISA warrant in the Wen Ho Lee case.

But this committee's going to get to the bottom of it. We're going to find out what's going on. And so far we have only glimmers of information, like an Agent Resnick (ph) was reassigned from a FISA unit, apparently removed by the special court where the Chief Judge Royce Lamberth reportedly excluded him. And the question is, did that make that unit gun shy?

The question is, did racial profiling make them gun shy? And in this kind of a situation, unlike ordinary cases where courts write opinions and we can tell what happened, I've discussed with some of my colleagues the possibility of consulting with Chief Judge Royce Lamberth about what went on, because we've got to figure out what is fair on civil rights, not overreact, but not look for 75 to 80 percent, or even 51 percent. You go with Chief Justice Marshall on suspicion, has to be quantified in accordance with the facts of the case.

But I think that your 13-page memorandum has started us off on a road which could produce a lot of fruitful results when we really get down to brass tacks and do it right with an appropriate legal standard.

ROWLEY: The language change that's already occurred that you mentioned has been very beneficial. That was a big stumbling block, and that change already has produced some results.

And I, as I talked to Senator Hatch, I think that maybe there could be some tinkering with the aspect of having to prove, especially with terrorist groups, that this person is an agent of the foreign power. And kind of use that analogy that we can use other types of information rather than something that--I use the example of a membership list, but a photograph, a telephone call, the same types of things that we might be able to use in a Mafia case to put a RICO case together as an enterprise, that we can use that in a terrorism case to show that they're affiliated with or have connections to...

SPECTER: But not...

ROWLEY: I think that would be a good idea.

SPECTOR: But not imposing a standard which is so high as to be unrealistic, simply to protect somebody from later blame for having made a mistake. If you don't do anything, no mistake.

LEAHY: Senator Schumer is next.

SCHUMER: Thank you.

And I want to thank you again, Agent Rowley, as everyone has, for your stepping forward and doing the nation a service. I read your memo, it was--you know, it showed you how long we have to go. There's a mindset there that has to be, sort of, cracked and your memo does it in both a forthright but also a nice and respectful way.

And I have a few questions. First, I don't know if you happened to hear my conversation with Director Mueller on the computer system.

ROWLEY: I heard some of it, I don't know if I heard the exact whole thing, but...

SCHUMER: Well, the bottom line is that the FBI's computer system is amazingly backward. I've done a little bit more search on it, or I want to elaborate a little more. You can sometimes do a search by term, but you can never combine two terms. So you can use "aviation," and get a huge amount of stuff, or you can use "school" and get a huge amount of stuff, but you can't do "aviation" and "school."

ROWLEY: That's correct, actually I, kind of, mentioned that earlier. It's absolutely right.

SCHUMER: And that just amazes me, because as I said to the director, you can do that on my daughter's computer that she's in seventh grade that we bought her this fall for, I think it was, $1,400. And I know we've each year increased the amount of money.

Tell me, first, because I asked the director this, what led to the FBI being so backward in such a fundamental tool, in your opinion? I mean, this is not just typical, this is dramatically and deeply atypical, worse, negatively atypical.

ROWLEY: Backward in computers: You have given me a question I--of course I have thought about some of these question, I guess, in my dreams, or sleeping, or whatever. But that's one I haven't thought about.

SCHUMER: But just, you know, your knowledge of the bureaucracy. How could--assuming that most small businesses and even most junior high school students have better computers than the FBI, why would the mindset of the FBI be such that as of today this is?

By the way, this isn't just as of a year ago--he, Director Mueller said it would take two years at minimum to bring the system up to snuff.

But one of the things that troubles me is, why wasn't there somebody--I mean, you don't need to get a Ph.D. in computer science to know that the problem--how deep this problem is.

ROWLEY: You know, one of the only things that comes to mind--and I have, you know, 21 and a half years in, so I'm going back to when I was a brand-new agent, and I worked with the, kind of, like, the people now who would have been 20 some years ago. When the computers first started coming on the scene, there was many of the old-time agents can't type, we had secretaries and stenos who actually wrote the interviews after you just dictated it and it got written. I do know there were a number of people at higher levels back in the '80s who were, kind of, opposed to computers, and they hated them, and the typing and everything.

SCHUMER: Do they still have carbon paper over there at the FBI?

ROWLEY: No, actually when I started we still had it. We had a lot forms that were still on carbon paper that had to be hand-typed.

So I don't quite no why we've never--I just, I'm real lucky that I took personal typing in high school because that helped so much that when you can do your own--especially when you're going to write a letter that you don't have anyone else that can see, I'm so glad that I can type all right.


And actually, now, I should say that with our new agents, this really has--this is no longer an issue.

SCHUMER: This is a function. You know, you can have a bunch of agents out there in the field who don't know how to type, but somebody at the headquarters should have said, years ago, that we--it's such an obvious tool in crime fighting. Is it used? I mean...

ROWLEY: Of course that's recognized now and I don't know exactly how this all developed, but it goes back some time, as you have noted.

SCHUMER: OK. Let me ask you this--I mean, I know the others have been watching this. We can watch these things on television from our offices; they broadcast them. And I know a lot of people have asked you about the culture. But let me ask you, what would you do if you were director--if the director came to you and said, "How do you change the culture?"

I mean, this is a big, deep, proud organization that is now reeling. You know, I'm sure it is, and there are many, many as has been said, many fine people and they've done a good job on a whole lot of things. But it's been obvious to some of us that over the last several years they've lost, not just in this area but in other areas, sort of, lost its edge.

How do you change it? What would you recommend from your perspective as an agent in Minneapolis?

ROWLEY: Well, I think there is probably several things that could be done to improve the culture in the FBI leadership and the problem of careerism.

Our director, Mueller--I keep saying Director Mueller has said this and in many cases this is true--he has mentioned, time over, that we need to pick our best leaders. We need to pick those best people out there. In my statement, I mentioned the fact that I've seen in the past few years just the opposite happening. I've seen a number of great FBI agents with great background experience actually stepping down from their positions of leadership. It's actually gone the opposite direction, and for a lot of reasons.

So somehow, that has to be reversed. We have to give better incentives to getting into management. We have to reduce the disincentives.

Paperwork--no one's asked me about paperwork. I think that's a real problem, I think people ...

SCHUMER: I asked you about the inverse, computers.

ROWLEY: I think that, you know, we need to be judicious about that. If someone--I go back to the don't rock the boat, don't ask a question problem. If I say, "Why are we doing this? Does this really have any value? Does it serve a purpose?" it's either one of two things, it's just like a complaint that we can all complain about it but nothing can ever change; it just, kind of, falls on deaf ears and no one, like, really examines it. Or it might actually be seen--if you're criticizing some particular program write-up or some particular inspection thing, it actually might be seen as a challenge to somebody higher up, and they may get mad, or whatever.

So I think to some extent, if we're going to really scrutinize what is necessary and how we can become more effective, we definitely need to encourage people to say, "Exactly, is there a purpose to what this is, and, you know, if there is, fine, we'll continue doing it. Can it be done quicker? Can it be done in a more minimal fashion?"

SCHUMER: Those questions are not asked enough. It's a real bureaucracy is what you're saying.

ROWLEY: The day before I came here, I had to fill out our ethics audit, and that meant that I had to name all the people in my office. Essentially, I had to retype around 60 some names. I'm a good typist, but it still took me like an hour and a half. And I was busy as all get out three days ago trying to do this and everything, and yet I had to take about an hour and a half to re-type, and actually these names are in a file. And all you have to do is open up this file. And yet, if I would have complained and said, "Why am I"--I actually did complain.


But I still ended up retyping those. And that's just one little example.

SCHUMER: Right. OK. We have a vote, there's only about two minutes left. Patrick's back. I was going to call a brief recess, but I may come back and ask you a few more questions, but I'm just going to vote. And I thank you. And if I can't make it, I thank you double.

We should bring you with us while we vote, Agent Rowley. We could probably continue the questioning. Just grab the stenographer, who is superb, here, who's done this forever, and follow us over. You could turn the red light off. We're not going to take anybody's time.

One thing, and I was going to ask it earlier, but I didn't want to infringe on the time of the others, you said in your letter that there's a perception among rank-and-file agents that there's a double standard when it comes to discipline in the FBI. I remember hearing that way back in my days when I was a young prosecutor in Vermont and working with the FBI then. What do you mean by this double standard? And if we could wave a magic wand, what would we do to get rid of it?

ROWLEY: Maybe I can think of how we can get rid of it. Of course, you can just--we have in the FBI already, in the last year or two, when this problem has surfaced, it's been surfaced by others at various times. And there are examples, I think, that have occurred in the past few years, where higher-level management did the same misconduct or made mistakes, and it was lightly dealt with or not dealt with at all, whereas a lower-level agent would be disciplined. And this has surfaced before.

Now, in the last year or two, even prior to the director, there have been attempts just by policy to make sure that this doesn't happen. I think that they are already in place with the SES (ph) system. They've made some changes to that, so trying to, you know, remedy the problem, that they will have the same--I'm not sure. I don't know if it's--I know that the OIG in some cases now has been given some additional powers to look at things.

It might require somebody just outside our agency, because if you are in a chain of command, it's going to be very difficult to ignore that someone at a higher level--I think it's, kind of, just inherent, that may be some double standard. There have been attempts, though, in the past year, to try to remedy this.

LEAHY: Thank you. Ms. Rowley, I'm advised (ph) that some of the other senators on the Republican side are coming back in the building, am I correct? Thank you.

And we'll stand in recess for a couple minutes and them come back. Give you a chance to stretch your legs. Even talk to your husband if you'd like.

Thank you. We'll stand in recess for a couple minutes.


LEAHY: Ms. Rowley, if we could begin. Senator DeWine is here and we can--Senator DeWine, it might...

DEWINE: Mr. Chairman, thank you very much.

Agent Rowley, thank you very much for being with us today. Thank you for your letter, your testimony, but most particularly thank you for your over 20 years of service to our country and to the FBI. I know that you are one of thousands of dedicated FBI agents. We just appreciate your work.

I talked this morning a little bit to the director, and I said that you letter and your testimony, but for the facts of this particular case, probably could have been written by many agents; that I sense a great deal of frustration with agents, those who have devoted their life to the FBI in regards to the bureaucracy that you have outlined in your letter.

So I thank you for coming forward with the specific recommendations.

Let me talk a little bit about those recommendations, but also try to get a better understanding of how your office works. For example, how many FISA cases would you have in a year or possible FISA cases?

ROWLEY: I'm not quite sure. Really I'm not even quite sure I can answer that from a national security standpoint, other to say than our office would probably be one of the offices that would have far less than other offices in the country.

So relatively few is maybe the best I can say.

DEWINE: You're the legal counsel?

ROWLEY: Yes. I'm our legal counsel in our office. Some offices have more than one, but in an office such as ours, with about 115 agents or so, we just have myself.

Now there is a similar thing of course in regular criminal cases for Title III, intercepts, wiretaps. And even in those cases they can be different types of crimes. We also, in those cases, would not conduct nearly the number that other offices with the Mafia and bigger drug cartels or whatever. But we do have a few of those a year.

DEWINE: Do you think--without getting into the specifics or the numbers of anything, do you think that that in anyway impacted how this matter was handled?

ROWLEY: The fact that our office--actually...

DEWINE: I'm not suggesting it does. I just don't know. Your office...

ROWLEY: No, I don't want to comment specifically about this case, but I don't think really--our agents in Minneapolis, we have some top caliber agents. Some of our agents have come from other intelligence--they have other intelligence backgrounds. And I really think it would have made a difference.

Our--we really have top-notch people.

DEWINE: Let me ask you, looking at this particular case, has it been your experience that you've had other problems, not directly related to this case or not using this case even as an example. But you talk about and you know, you're very lengthy letter, you talk about the bureaucracy, you talk about the frustration. Obviously, that letter just didn't come up from this particular one case. I mean, you've had other problems?

ROWLEY: Correct. And not only...

DEWINE: And so it would be--excuse me--would it be fair to say this is not unusual but for circumstances unusual, national security matters unusual, the horrible tragedy is unusual...

ROWLEY: I've heard...

DEWINE: ... but typical in a sense?

ROWLEY: Yes. And also, as you mentioned in your--at the start that this could be the complaint of any number--large number of agents around the country. From the responses I received from field agents in other divisions, up to till now, and hopefully, you know, cross our fingers that it's going to start improving, that this has been the experience in many other types of cases.

The bureaucracy has been a problem, hitting roadblocks internally and again externally--it can be in criminal cases as well--is a problem. And I think we need to think maybe in some what creative ways of trying to remediate this.

If I can, I don't to take up all of your time, but I didn't give a tremendous answer to Senator Schumer earlier, when he asked...

DEWINE: We'll take that from his time, even though he's gone.


DEWINE: The chairman's not laughing...

ROWLEY: It ties in a little bit with your question, so I will give you 30 percent and him 50.

DEWINE: All right, but I do have a couple more that I'd like to get in.

ROWLEY: You know, when you're talking about the probable cause and why this is has, kind of, come into this issue, it's kind of complex where the mind sets start to change. And I know Director Mueller today mentioned something which struck me as a little odd or a little--or actually, I, kind of, bristled a little bit at it.

He said, "Well, maybe--someone suggested maybe we should give our agents training in probable cause."

Well, first of all, that would fall to me. And I am, I am here to say that the agents who have 20 years in the FBI, who have done search warrants and Title IIIs and any number of things, really, really are quite, quite familiar with standard of probable cause.

I don't think that would really serve any purpose to give some, kind of, esoteric training.

DEWINE: All right.

ROWLEY: But there are some improvements, you know, to the writing, where, you know, the people on the scene should be given some credit for their observations because those are firsthand observations. And in writing an affidavit, that should really be of primary importance. And there shouldn't be any rewriting of an affidavit further up the chain, unless it's grammatical or really not of any substance.

DEWINE: OK. One of the recommendations you made, I would like to read to you and then I'd like for you to comment on.

Number nine, "Development of confidential sources and assets. Just recently in the wake of the Whitey Bulger scandal, the guidelines for development of confidential sources and assets have been extremely restrictive and burdensome. While some of the measures undertaken to monitor the informant process were necessary, they have not gone too far. If not reviewed or trimmed, may result in reduced ability on the part of the FBI to obtain intelligence."

Do you want to explain that a little bit?

ROWLEY: I'm not the person in my office who's the informant coordinator. But we've all, of course, in the wake of these new guidelines on informants, been given additional paperwork that needs to be completed, additional items that need to be conducted before opening sources, before certain sources can do certain things. I think it should maybe be re-examined.

I am one of the--I have to tell you where I'm coming from. Because back in the '90s, we actually had an FBI agent who murdered his informant. And to me, it's, kind of, like other scandals. It seems like we should have done something back then. And nothing occurred after that incident.

We did not have a policy in the FBI in the '90s that prohibited social or sexual relationships with informants. I find that just unbelievable, because most law enforcement agencies had such a policy.

I think if we would have had a strong policy, if we would have had some accountability and some good oversight, perhaps all of these additional things that later transpired wouldn't have occurred.

And maybe now--whenever these things happen, it's just inevitable that sometimes it goes a little too far. And we might have some additional paperwork that's...

DEWINE: Let me ask you one last question. In your letter, you mention the problem that agents have with the perception that sometimes they try for a Title III warrant and then, if that fails, go for a FISA warrant, which requires different proof but an easier standard.

Let me ask this: Do you think that happens a lot?

ROWLEY: No. I don't. I think...

DEWINE: You know, are these suspicions reasonable?

ROWLEY: No. I don't think it actually happens. In real life, I do not--I've never seen where you try for something to do it criminally, and if you fail, you pursue the intelligence method. I have never seen that.

But do I think that there is a perception out there sometimes? I do think that there is a perception that this, this smell test, or whatever, exists. I don't think it's correct, but I think it does exist.

DEWINE: Thank you very much. We appreciate your testimony. Thank you.

Thank you, Mr. Chairman.

LEAHY: Thank you very much.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

Agent Rowley, I had to leave to vote just as Senator Schumer was beginning to ask you a question that I wanted to ask you. And it related to your answer to Senator Grassley's question about computers. I just want to, maybe a quick response.

You had testified in response to Senator Grassley that it would be nice to have new computers. I'm not sure you wanted to leave us with the impression--I mean, nice is nice, but not really necessary. And I just wondered if that's really the impression you wanted to leave us with. If so, fine; I just wanted to give you a chance to respond.

ROWLEY: Well, the ability to conduct research of our records, as I described--just like you would on Lexis-Nexis, for instance, where you're putting connectors and stuff. I guess nice is not the word. When it comes to intelligence, and you really have these critical snippets out there, it would be more than nice. I think it's necessary.

It may not, in other cases, be all that critical. But in intelligence, I think it is.

KYL: Thank you very much. I assume that most of us would agree with that.

You had what I thought was a very interesting recommendation in your statement. And you haven't had an opportunity to discuss it yet. It's the public safety exception, the Quarles case. And I wonder if you would describe a little bit why you think that would be important, and particularly in the context of terrorism that we're concerned about here.

ROWLEY: Thank you for giving me that opportunity. It's a little issue that's come up before, actually, in criminal cases. We've had kidnappings. We've had cases where someone's life can be right on the line. And we have a--there is a case that makes this really constitutional to--I shouldn't say ignore Miranda, but disregard it, for public safety reasons. The only problem with that case is, it's the loaded gun in a grocery store. And when you start mentioning applying it to other cases, such as in a terrorism case, when we might want to interview someone, there may well be--I always think of the bomb, and someone ready to push it down.

Obviously, Miranda is a safeguard, and it's a good safeguard in many cases. But there can--it's like everything else. There may well be a time when it should be, you know, overridden, and that would be to save a life.

As it stands now, there's a case about that. So it is constitutional. I think that it wouldn't be overturned if there was a statute about it.

The only problem with the case is like anything else, it's a case. In order to give timely advice to someone, you've got to run to a computer and pull it up. And I think that many people have, kind of, forgotten that case. And many courts have actually limited it to its facts.

So I think that we have cases that come up from time to time, and...

KYL: Do you think that we should at least try to write some kind of a narrow public safety exception?

ROWLEY: I do. I contacted--after September 11 I called some staffers about this. Because I think it is an important issue. And I think it definitely has the potential to repeat itself.

It's not often. I know people will get alarmed if we say we're going to violate Miranda. But I don't think that it is something that comes up all the time. But there are these cases.

The one I referred to, it's the most dramatic one. There's a baby in a duffel bag in a forest that's been kidnapped that morning. And that is the type of thing. Of course, it doesn't arise too often, but when it does, our agents really need to be somewhat--feel somewhat safe that they can proceed. Right now after the Dickerson (ph) case, there are commentators that are speculating that civil liability exists for the agent.

So in addition to having the statement suppressed, which in a case like this really, if it's saving a life, we would--goes back to your prevention versus prosecution. We wouldn't care about the prosecution, we wouldn't care about the statement being suppressed. We would want to save the life.

KYL: Might even get sued.

ROWLEY: Right. Now the agent might even get sued...

KYL: Do you have...

ROWLEY: ... possibly.

KYL: ... excuse me, do you have to pay for your own liability insurance or umbrella coverage or anything of that sort?

ROWLEY: It's my recollection that we get $50 reimbursed from the Department of Justice for our liability insurance. I think that's right. I'm not sure. We get a portion of it. I think it's $50.

KYL: But a liability insurance policy would protect agents working in the course of their employment, would cost a lot more than $50.

ROWLEY: A couple of hundred, is it?

I think it's a couple of, round a couple of hundred a year. And that kind of civil liability protection, you go back to your chilling factors. Even if--agents don't even want to be sued. It's like, you know, any other person, that suit itself is a real chilling factor of somebody aggressively trying to save a life.

KYL: I've been an advocate of trying to have the government pay for the insurance for people who are working in the line of their duty.

You testified earlier that--to something that I thought was very important, and it maybe didn't quite receive the degree of attention that I think is warranted. And it had to do with the new guidelines.

From your experience as an agent on the line--and you said you had also gone back and reviewed more historic documents in the course of your employment--you view these new guidelines as very helpful to doing your job. And you indicated that you didn't think the American people had to be fearful that they would be abused by the agents. And you used the specific example of being able to go into a meeting and if there were discussion of threats of terror then that would be very useful. And if there weren't, then that was the end of it is, kind of, the way you put it.

Do you want to amplify on that at all, because I think this is a very important point for people to understand?

ROWLEY: I think that when a certain guideline might be somewhat relaxed, in this case--and, of course, Director Mueller has explained that surfing the net is something any kid can do, going into any meeting is anything a local law enforcement or anyone can do--I think it's the real crux of it is in how it's done.

We also have the ability to collect information, so just by undertaking to keep your ears open and walk into that meeting and then if something does transpire, you can act on it, that doesn't mean we get overboard and start recording things and mishandle that ability. It really goes into the capability to use it judiciously, because I think it increases only the potential for--it does perhaps increase the potential of going further than we have before.

But it--I don't think it necessarily--I think we can have our cake and eat it too is what I'm saying here.

KYL: With good training.

ROWLEY: I think we have--with training we can do these items and we still can avoid interfering with people's rights.

KYL: Appreciate it very much. Thank you.

LEAHY: Senator Sessions, the most patient man in Washington?

SESSIONS: Thank you, Mr. Chairman. And I think this has been a good hearing.

LEAHY: I do too.

SESSIONS: We've had a good high-level discussion. And the witnesses are talking about important matters.

And Agent Rowley, thank you for what you have done. I know it's an unusual thing, but it was an unusual circumstance.

Before Director Mueller was confirmed, he and I talked. At his confirmation hearing we talked and I asked him questions. And I focused on the very things you raised in your memorandum.

I raised questions concerning matters such as defensiveness on the part of the FBI, unwillingness to admit mistakes, some arrogance, too much bureaucratic blocking and particularly in Washington, that undermined effectiveness of investigations in the field. And I asked those questions, based on my experience as 12 years as United States attorney and two as assistant.

I believe that is consistent with the overwhelming view of federal prosecutors throughout the system. And I believe that as you have noted, it's consistent with the views of the agents in the field.

So to that extent, your letter and the public hearing that's come about here, I believe will strengthen his hand in being able to make the kind of cultural changes that need to be made.

And I love the FBI. I know you do. So we want to see it reach its highest and best potential, not hurt it in any way.

I think--my own personal view--that we hurt the IRS. I think that has been damaged by some of the things that were done. And we don't need to damage the FBI. We need to strengthen it and help it reach its fullest potential.

But just back to this problem we were facing, it seems to me there's always a good excuse that the computer system wasn't up to date.

If you had been given a point person to monitor the intelligence of the United States, wouldn't you create a system in which important documents from the field would come to your desk personally within hours of the time they were sent forward? And isn't it unwise or inadvisable, as apparently occurred with regard to the Arizona memorandum, that some clerk sent it off to a different section, and it never even got to the supervisor there? Isn't that a poor way to run a shop?

ROWLEY: Well, as a general matter--I'm not speaking to any particular case, but as a general matter, of course, it's obvious that we want the important items that need to be acted on to really get to the right place. And if we do have a focal point at a central location, it's very clear that they have to get that information.

There is a problem of when there's a lot of intelligence being gathered, and the ability to distinguish the wheat from the chaff. And that isn't easy when you first get this information. So that is, I think, one of the reasons for having an intelligence analysis where we can really attempt to get these important things that need to be acted on as distinguished between something that's not so important.

SESSIONS: Yes, well, I think Director Mueller's new organization will do that. And I don't think there's anybody there that's not going to be reading important documents from the field.

I think those documents could have been recognized as being important before September 11. And I don't think we can say with certainty, as you pointed out, that they could not have helped us avoid September 11. Probably not, but possibly.

ROWLEY: Could I say one more thing because I just thought of something? I--you know, one way that--of recognizing importance really--and this can't be underestimated--the person who is experiencing firsthand the event--OK, I'm just going to speak generally, but if it's a flight instructor or whatever it is and this thing is real--that's not a good example. But I'm just saying that if it's a somebody who's experiencing it firsthand, many times is in the best position. It's not the person five levels up. And what often happens is it gets lost in the translation.

SESSIONS: Absolutely. I agree.

ROWLEY: The person here who sees it, feels it, eats it, really knows it's importance. Someone further up the chain--and again, the message by that time has maybe been diminished or whatever--doesn't recognize the importance.

SESSIONS: All right, let me ask you this: It's odd to me that the investigative agency, the agency designed to protect public safety--and I've seen instances where this occurred in the Department of Justice and not just the FBI--don't you think they shouldn't be negative about things that might impact public safety, but they should be positive and help the people in the field succeed; rather than putting down and throwing up roadblocks, they ought to be helping them, recognizing that you are on to something important and maybe helping you legally or through intelligence searches around the country and the world, helping you to succeed?

If you don't advocate, if the Department of Justice does not advocate and take it to court before a judge who has a final responsibility, who is going to advocate it?

ROWLEY: Well, that's--I had forgotten to mention my point--a footnote in my letter about the judges. And I think our system actually was originally designed to let a judge--it goes to Senator Schumer's question too--all these perceptions of where probable cause may lie. Our system really was designed to let a judge make those determinations, not someone--not, you know, other levels before you even get to a judge.

When in doubt, it's especially when public safety is on the line, I think we need to let judges look at these things and then make their determination.

I totally--in fact, I've heard from a prosecutor who, you know, many prosecutors might be antithetic to, you know, someone--it's even the second opinion idea. They may say, ``Well, I don't want anybody second-guessing me.''

But I actually heard from a prosecutor about that point about going, you know, when in doubt, when in doubt, take it to a judge.

SESSIONS: When lives are at stake...

ROWLEY: Especially.

SESSIONS: ... this was not a minor matter. This was a matter that dealt with potential loss of life and I think you should advocate, not take the--now you've expressed an opinion in your letter that there was clearly probable cause at some point before September 11. How confident are you of that?

ROWLEY: I'm not going to get into that because, of course, these issues are before the other committee, and I'm just not going to comment at this time about it.

SESSIONS: Well, you say in your letter that probable cause existed in your opinion.

ROWLEY: That's correct. I actually do not...

SESSIONS: Still stand by that or do you...

ROWLEY: I didn't expect that letter...

SESSIONS: ... or was there close call?

ROWLEY: That letter--actually the fact that everyone here is aware of it, I didn't really know that would happen, because I gave it to the Joint Intelligence Committee, and I think--I have to be very circumspect at this point, because there are ongoing proceedings.

LEAHY: I might say, Senator Sessions, one of the--as we've made it very clear, Agent Rowley has been extraordinarily forthcoming, as has Director Mueller and his office. We did agree that we would be careful limiting into issues that involve an ongoing case.

I would point out that some of the measures have been raised in Intelligence, and we can provide you, on a classified basis, some of the material you're talking about. I'd be happy to arrange that.

SESSIONS: I fully understand that. But I tend to be like Senator Specter. Sometimes I think there are too many people in the system putting too many burdens that go beyond what the law requires, and therefore it makes it difficult for public safety to be protected.

LEAHY: Thank you.

I want to thank all the senators, both Republicans and Democrats, who--this hearing, from the time we started this morning, has been about an eight-hour hearing. Ms. Rowley probably thinks it's even longer because she was watching the early hearing before.

Agent Rowley, I have a feeling that you'd much rather be in your office, doing the things that you--from everything that we've been told--do very, very well. But I appreciate your being here. I appreciate Director Mueller. And Inspector General Fine, and the amount of time they took. We have people like Mr. Collingwood (ph), who's sat through all this patiently.

These hearings, as both Senator Hatch and I have made very clear, are not ``gotcha'' hearings. Through the hearings, we want to help.

If a terrorist attack--as I said earlier, terrorists don't ask whether you're Republicans or Democrats, or where you're from or anything else. They just strike at Americans. And all of us have a duty to protect Americans.

We also have a duty to protect those things that have saved our own liberty. As I said earlier, attorneys general come and go, senators come and go, directors come and go, we all do. The Constitution stays constant. And we can protect ourselves within that framework.

You are sworn to do that. And you've worked a long career upholding that oath. And I admire you for it.

So I thank all of my colleagues. This is one of many hearings we've had.

And we will stand, gratefully, in recess.

© 2002 The Washington Post Company


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