[Senate Hearing 107-514]
[From the U.S. Government Printing Office]
S. Hrg. 107-514
CONFIRMATION HEARING ON THE NOMINATION OF ROBERT S. MUELLER, III TO BE
DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JULY 30 AND JULY 31, 2001
__________
Serial No. J-107-33
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
80-335 WASHINGTON : 2002
________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
----------
MONDAY, JULY 30, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 12
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 16
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
Kyl, Hon. John, a U.S. Senator from the State of Arizona......... 21
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 20
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 15
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 15
STATEMENT OF THE NOMINEE
Mueller, Robert S., III, of California, Nominee to be Director of
the Federal Bureau of Investigation............................ 23
Questionnaire................................................ 31
TUESDAY, JULY 31, 2001
STATEMENTS OF COMMITTEE MEMBERS
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 131
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 95
McConnell, Hon. Mitch, a U.S. Senator from the State of Kentucky. 132
PRESENTERS
Boxer, Hon. Barbara, a U.S. Senator from the State of California. 97
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 95
NOMINATION OF ROBERT S. MUELLER, III TO BE DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION
----------
MONDAY, JULY 30, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 1:07 p.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feingold, Schumer, Edwards, Hatch,
Thurmond, Grassley, Specter, Kyl, and Sessions.
Chairman Leahy. I want to welcome Robert Mueller and his
family. Actually, before I start my statement, Mr. Mueller,
because of the age of some and knowing they may not have quite
the staying power that the rest of us have, why don't we change
order slightly. Why don't you introduce your family. Both
Senator Hatch and I and Senator Specter and Senator Feingold
have already met them, but would you please introduce them?
Mr. Mueller. Thank you, Mr. Chairman. To my left is my
daughter, Melissa; my wife, Ann; next to her is my daughter,
Cynthia, holding Robert Charles; and next to Robert Charles,
glaring at me, is my granddaughter, Campbell, with her father,
Chris Donley; and two friends to my left, another Campbell, and
Carolyn Howe, good enough to help us with the young ones today.
Chairman Leahy. You are blessed with a fine family, and as
I mentioned earlier, just so everybody will understand, we
expect that perhaps the attention span of some will be less
than that of the Senators or the nominee, so feel free to slip
out that back way at any point.
OPENING STATEMENT OF HON. PARTRICK J. LEAHY. A U.S. SENATOR
FROM THE STATE OF VERMONT
Chairman. Leahy. We are, as I said, beginning the hearings
today on the nomination of Robert S. Mueller, III, to be
Director of the Federal Bureau of Investigation, frankly, among
the most important positions in our Government. He has had an
outstanding career in law enforcement, served as a Federal
prosecutor in three different U.S. Attorneys' Offices. He
served in Main Justice under both Republican and Democratic
administrations.
For Mr. Mueller and for this committee and for the Nation,
this is more than a job interview because we are at a crucial
juncture for the FBI. Well beyond an interview, in many ways
this hearing will be a redefinition of the job of FBI Director.
The committee wants to forge a constructive partnership
with the Bureau's next Director. We do this to get the FBI back
on track. Congress sometimes has followed a hands-off approach
about the FBI. Until some of the problems we see are solved, we
are going to need a hands-on approach.
The rights of all Americans are at stake in the selection
of an FBI Director. He has extraordinary power to affect the
lives of ordinary Americans. By properly using the
investigative powers, the FBI can protect the security of all
of us to combat sophisticated crime, espionage and terrorism.
But these same powers the FBI has, if they are unchecked,
they can undermine our civil liberties, our freedom of speech
and association, and the right to privacy. If the FBI leaks
information, they can destroy the lives and reputations of
people who have not been charged or had a trial. And, worse,
such leaking can be used for political intimidation and
coercion.
By respecting constitutional safeguards for criminal
suspects, the FBI can help ensure that persons accused of
Federal crimes receive a fair trial and that justice is served.
Our paramount standard for evaluating a new Director is his
demonstrated adherence to the Constitution as the bulwark of
liberty and the rule of law. This is necessary to assure the
American people that the FBI will exercise its power and
exercise it in a proper fashion.
Now, many in our country have lost some confidence in the
Bureau. That is more than just a PR problem, because if you
erode public trust, then you erode the ability of the FBI to do
its job, because if people mistrust the FBI, they are going to
be less likely to come forward and report information that law
enforcement may need. Mr. Mueller, you have been in the
position of being an active prosecutor and trial lawyer. If
there is not respect and confidence in the FBI, then judges and
jurors are going to be less likely to believe the testimony of
FBI witnesses.
In fact, if you lose trust in the FBI, then if agents make
innocent or minor mistakes in the future, people are going to
wonder whether there some kind of sinister factor behind this.
FBI agents perform forensic and other critical work for many
law enforcement agencies on the Federal, State, and local
levels. So if you have a decline in public confidence, it has a
ripple affect on the cases local and State prosecutors have to
handle.
Now, constructive and bipartisan oversight of the FBI can
greatly improve its effectiveness. Reviews by Inspectors
General and other outside experts are important, but the
ultimate test is accountability to all the people through the
Congress. So we will ask the nominee about his views on
congressional oversight. And the questions being asked about
the FBI are directed at three interrelated issues: the Bureau's
security and information technology problems, management
problems, and insular culture. We have been looking at each of
these, beginning in the hearings I started in June.
In the national security field, our country depends on FBI
counterintelligence to protect the most sensitive intelligence
and military and diplomatic secrets from foreign espionage. We
were told at one of our hearings that there were no less than
15 different areas of security at the FBI that were broken. In
the testimony of their own experts, we were told those areas
need to be bolstered, redesigned, or in some cases established
for the first time. So we want to hear about that.
The FBI needs to join the 21st century. That is axiomatic.
But we find that much of their computer systems are obsolete.
In fact, we were told the FBI's computer systems have not been
updated for over 6 years; that more than 13,000 desktop
computers are so old they cannot run on today's basic software;
that the majority of the smaller FBI fields offices have
internal networks that work more slowly than the Internet
connections somebody might have on a dial-up system at home;
and that the investigative data bases are so old that FBI
agents are unable to store photographs or graphical or tabular
data on them.
I can't help but think that the hard-working, dedicated men
and women in the FBI who are out across the country trying to
fight crime deserve better, and they should have the computer
network tools that most people take for granted and most of the
graduates of the FBI Academy have probably been using from the
time they were in high school.
These are not problems of money. We have poured a lot of
money into the FBI. It is a management problem. So I am glad to
see a nominee who has seen the FBI up close for so many years
as Acting Deputy Attorney General, as Assistant Attorney
General, and in three U.S. Attorneys' Offices, and we will ask
about his management ideas and abilities.
We want to know about the FBI Director's relationship with
the Attorney General in the overall management structure.
Sometimes in the past, Directors have had too much of the final
word on management of the Bureau. Now, we don't want political
interference, but the Attorney General is still the boss. And I
have told Attorney General Ashcroft that there won't be an inch
of daylight between the two of us on that aspect.
We received testimony in our oversight hearings that too
often the independence that is part of the FBI's culture, and a
respected part, has instead, though, crossed over into the line
of not being independence but arrogance. Senator Danforth
expressed concern to this committee about entrenched executives
at the FBI who have created a closed and insular culture
resistant to disclosure of mistakes. And we heard testimony
from experienced FBI special agents who told us of a ``club''
mentality among some Bureau executives who resist criticism or
changes that threaten their careers. In fact, Senator Danforth
recommended that the new Director should be prepared to clean
house if necessary.
If there is only one message I could leave in that respect,
it is that senior management has got to know that it is better
to admit mistakes and correct them than to cover them up and
wait for us to find them.
To give you one example, of the idea the FBI can admit no
mistakes: in the weekly newsletter for FBI employees, the FBI
reported on our committee's July 18 hearing. But, interestingly
enough, they only reported the testimony of the two senior
executives from the FBI who told us what they were doing to fix
information technology and security problems, but the
newsletter didn't talk about the four other FBI agents who
testified about problems of a double standard in adjudicating
discipline and about retaliation within the FBI. They left that
out. Ignoring the testimony doesn't make it go away. If the FBI
tries to suppress information that things have gone wrong, it
is never going to fix them.
That is why I support the change made by Attorney General
Ashcroft to give the Justice Department's Inspector General
full authority over the FBI. The Director has to make clear
that FBI executives should reward not discourage participation
in Inspector General and other oversight inquiries.
We have heard disturbing testimony about retaliation
against agents who are tasked to investigate their colleagues
or who discuss issues with Congress. I think a clear message
must go to the FBI employees that the Director will not
tolerate retaliation against agents who conduct internal
investigations or who bring information about wrongdoing to the
Congress.
The internal FBI study that we released at the committee's
last hearing found a double standard at work, with senior FBI
executives receiving a slap on the wrist for the same kind of
conduct that would result in serious discipline for lower level
employees. The most vivid example occurred when seven senior
executives submitted false travel vouchers so they could fly to
Washington for the retirement dinner of a Deputy Director. The
average agent would have lost his or her career for doing that.
The senior executives received only a letter of censure. Two of
them actually received promotions and cash awards.
Those of us who have had careers in law enforcement--and
there are several of us in this committee who have long thought
that the FBI was the crown jewel of law enforcement agencies.
Some of that jewel has lost some of its luster, and we want to
restore it. So, frankly, Mr. Mueller, you have both a great
challenge and a great opportunity to restore public confidence
in the Bureau. I think it is safe to say all of us want you to
do that. We need to forge a strong and constructive oversight
partnership with the leadership of the Department of Justice
and the FBI to shape reforms. We can find the solutions to make
the FBI the premier law enforcement agency that the American
people want and expect it to be and an agency that can hold out
that bright promise to the men and women who are going through
your training programs. They are among the best in this
country, and let's make sure they are going into the best
Bureau possible.
[The prepared statement of Senator Leahy follows:]
Statement of Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont, on the Nomination of Robert S. Mueller, III, to be Director of
the Federal Bureau of Investigation
Today, the Judiciary Committee begins hearings on the nomination of
Robert S. Mueller III to be Director of the Federal Bureau of
Investigation. Mr. Mueller has had an outstanding career in law
enforcement, serving as a Federal prosecutor in three different U.S.
Attorneys' Offices and in Main Justice under both Republican and
Democratic Administrations. We welcome Mr. Mueller and his family here
today.
For Mr. Mueller, for this Committee and for the Nation, this is
more than a job interview. This is a crucial juncture for the FBI. We
aim to forge a constructive partnership with the Bureau's next director
to get the FBI back on track. Congress sometimes has followed a hands-
off approach about the FBI. Until the Bureau's problems are solved, we
will need a hands-on approach for awhile.
The rights of all Americans are at stake in the selection of an FBI
Director. The FBI has extraordinary power to affect the lives of
ordinary Americans. By properly using its extraordinary investigative
powers, the FBI can protect the security of us all by combating
sophisticated crime, terrorism, and espionage. But unchecked, these
same powers can undermine our civil liberties, such as freedom of
speech and of association, and the right to privacy. By leaking
information, the FBI can destroy the lives and reputations of people
who have not been charged or had a trial. Worse, such leaking can be
used for political intimidation and coercion. By respecting
constitutional safeguards for criminal suspects, the FBI can help
ensure that persons accused of Federal crimes receive a fair trial and
that justice is served. Our paramount standard for evaluating a new
Director is his demonstrated adherence to the Constitution as the
bulwark of liberty and the rule of law. This is necessary to assure the
American people that the FBI will exercise its power effectively and
fairly.
The American public has lost some confidence in the Bureau. This is
not just a PR problem. This erosion of public trust threatens the FBI's
ability to perform its mission. Citizens who mistrust the FBI will be
less likely to come forward and report information about criminal
activity. Judges and jurors will be less likely to believe the
testimony of FBI witnesses. Even innocent or minor mistakes by the FBI
in future cases may be perceived in a sinister light that is not
warranted. Since FBI agents perform forensic and other critical work
for many law enforcement agencies on the Federal, state and local
levels, the repercussions of this decline in public confidence in the
FBI has rippled far beyond Federal criminal cases.
Constructive, bipartisan oversight of the FBI can greatly improve
its effectiveness. While reviews by Inspectors General and other
outside experts are important--the ultimate test is accountability to
the people through the Congress. Therefore, I will ask the nominee
about his views on congressional oversight and, especially, his
willingness to join this partnership and provide the information this
Committee needs to oversee the Bureau on behalf of the American people.
The questions being asked about the FBI are directed at three
inter-related issues: the Bureau's security and information technology
problems, management problems, and insular ``culture.'' The Committee
is in the midst of examining each of these areas at oversight hearings
that began in June shortly after I became Chairman.
In the national security field, our country depends on FBI
counterintelligence to protect the most sensitive intelligence,
military, and diplomatic secrets from foreign espionage. We were told
that there were no less than 15 different areas of security at the FBI
that were broken and needed to be ``bolstered, redesigned, or in some
cases established for the first time.'' The Committee will want to hear
the nominee's views on the steps he will take to move forward with
security improvements.
The FBI needs to join the 21st Century. This is the information
age, but the FBI's information technology is obsolete. The Committee
has been told that the FBI's computer systems have not been updated for
over 6 years; that more than 13,000 desktop computers are so old they
cannot run on today's basic software; that the majority of the smaller
FBI field offices have internal networks that work more slowly than the
Internet connections many of us have at home; and that the
investigative data bases are so old that FBI agents are unable to store
photographs, graphical or tabular data on them.
Hard-working, dedicated FBI agents trying to fight crime across
this country deserve better, and they should have the computer and
network tools that most businesses take for granted and many Americans
enjoy at home.
The security and information technology problems facing the FBI are
not a problem of money. The Congress has poured money into the FBI.
This is a management problem and it can no longer be ignored. The
nominee has seen the FBI up close for many years--as Acting Deputy
Attorney General, as Assistant Attorney General, and in three United
States Attorneys' offices. The Committee will want to know what
management objectives he brings to this job, based on his past
experience, and what other resources he will draw on to bring about
needed changes.
It is especially important to understand how the nominee views the
FBI Director's relationship with the Attorney General in the overall
management structure at the Department of Justice. Too often in the
past Directors have had the final word on management of the Bureau. Of
course, there are legitimate concerns about political interference with
investigations, as Watergate demonstrated. The FBI Director is not,
however, unique in having to resist such interference. Both the FBI
Director and the Attorney General have that duty, and they should work
together to ensure the integrity of both investigations and
prosecutions.
The FBI ``Culture'' Needs An Overhaul. We are receiving testimony
in our oversight hearings showing that, too often, the independence
that is part of the FBI's culture has crossed the line into arrogance.
Senator Danforth expressed concern to this Committee about entrenched
executives at the FBI who have created a closed and insular culture
resistant to disclosure of mistakes and to reforms. His concern was
echoed in testimony the Committee heard from experienced FBI Special
Agents, who told us of a ``club'' mentality among some Bureau
executives who resist criticism or change that threatens their careers.
Senator Danforth recommended that the new director should be prepared
to clean house if the extent necessary to implement needed changes.
If there is one message that a new Director should get from recent
problems, it is that FBI executives need to be more willing to admit
their mistakes. Too often their response is to protect the Bureau from
embarrassment or shield self-serving executives from criticism and
needed change. A new Director must understand that this type of conduct
risks a far greater cost in the lost of public confidence, as compared
with admitting mistakes when they occur.
Let me cite one example that occurred just this week. In its recent
weekly newsletter for FBI employees, the FBI reported on the Judiciary
Committee's July 18 hearing. But the newsletter reported only the
testimony of the two senior FBI agents, who told us about what they
were doing to fix the security and information technology problems at
the FBI. Their testimony was also the only testimony posted on the FBI
website. Yet, the testimony of the four other FBI agents who testified
about problems of a double standard in adjudicating discipline and
about retaliation within the FBI was ignored--not mentioned in the
newsletter nor posted on the website. Ignoring the testimony will not
make it disappear. This kind of attitude makes it much harder to make
the changes that need to be made. If the FBI tries to suppress
information that things have gone wrong, it will never get them fixed.
To ensure full investigation of mistakes, I support the change made
by the Attorney General to give the Justice Department's Inspector
General full authority over the FBI. I hope the nominee will look
favorably on an amendment to the Inspector General statute that makes
this regulatory change permanent. A Director must make clear that FBI
executives should reward--not discourage--participation in Inspector
General, and other oversight, investigations of Bureau performance.
We have heard disturbing testimony about retaliation against FBI
Agents who are tasked to investigate their colleagues or who discuss
issues with the Congress, either directly or through cooperation with
the General Accounting Office, which assists in congressional
oversight. It is important that a new Director send a clear message to
FBI employees that he will not tolerate retaliation against agents who
conduct internal investigations or who bring information about
wrongdoing to the Congress directly. I will want to hear from the
nominee about his ideas for ensuring that such retaliation in the
workplace and in promotions stops.
Internal investigations must also lead to fair and just discipline.
Here the recent record is troubling. A internal FBI study that we
released at the Committee's last hearing found a double standard at
work, with senior FBI executives receiving a slap on the wrist for the
same kind of conduct that would result in serious discipline for lower
level employees. The most vivid example occurred when seven Senior
Executives submitted false travel vouchers so they could fly to
Washington for the retirement dinner of a Deputy Director. They
received only letters of censure for a voucher fraud offense that could
cost an average Agent his or her career. Two of them actually received
promotions and cash awards. In another case, the argument was asserted
within the Justice Department that the FBI Director may not be
disciplined because he is a Presidential appointee and that, in any
event, the FBI Director should not be disciplined for exercising poor
judgment. The Committee will be interested in hearing from the nominee
about his adherence to the basic principle that all public officials
should be held equally accountable.
The FBI has long been considered the crown jewel of law enforcement
agencies. Today, it has lost some of its earlier luster. The next FBI
Director has both a great challenge and a great opportunity to restore
public confidence in the Bureau, and this Committee stands ready to
help. We need to forge a strong and constructive oversight partnership
with the leadership at the Department of Justice and the FBI to shape
the reforms and find the solutions to make the FBI the premier law
enforcement agency that the American people want and expect it to be.
Chairman Leahy. Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman. It is an unusually
great pleasure to welcome Mr. Mueller, our nominee, to the
committee today. I always enjoy reviewing the many excellent
nominees for high office who come before this committee, but I
particularly relish those super-extraordinary few who not only
have stellar qualifications but seem to be an exceptionally
perfect fit for the job for which they have been nominated. We
have such a nominee before the committee today. Indeed, it is
hard to imagine another nominee whose unquestioned experience,
good character, and reputation would so perfectly match the
requirements of this new position.
Now, I do not say this lightly. I consider the FBI to be
one of the most important agencies of the Federal Government
and the post of the FBI Director to be one of the most
consequential in the world today. The FBI Director is trusted
to command huge resources that touch the lives of people around
the globe. He is charged with protecting the most important
resource in America, our people, against criminal activity that
is increasingly sophisticated and resourceful. And the Director
holds a term, 10 years, that exceeds that of any elected
Federal representative. The Director thus has great power and
great insulation from the popular will, a combination that
requires this committee to be especially vigilant in its
confirmation review.
But after examining Mr. Mueller's record, meeting with him
privately, and hearing from many people who know him, I am
extremely pleased that President Bush has chosen Bob Mueller
for this position. I have the utmost confidence Mr. Mueller has
the judgment, the integrity, and the dedication to purpose that
will make for an excellent FBI Director.
I have a full written statement that I would like to submit
for the record, Mr. Chairman.
Chairman Leahy. Without objection.
Senator Hatch. But I would like to mention that, as I
reviewed your responses to the committee questionnaire, Mr.
Mueller, I was particularly struck by two items on your long
list of professional accomplishments. The first is your
military record, a matter about which I was not previously
aware. During the Vietnam War, Mr. Mueller served as a rifle
platoon commander and eventually as an Aide-de-Camp to the
Commanding General to the 3rd Marine Division. He was awarded
the Bronze Star, two Navy Commendation Medals, the Purple
Heart, and the Vietnamese Cross of Gallantry.
The second particularly notable item is that in 1995, after
2 years as the senior partner at the distinguished firm of Hale
and Dorr, Mr. Mueller left to join the Homicide Section of the
U.S. Attorney's Office in the District of Columbia, and this
after he had served as head of the Criminal Section in the
Department of Justice. When I saw that, I was reminded a bit of
a man whom all of us admired a great deal, even though some of
us disagreed with his clients on certain issues, Charles Ruff,
who died last year. Chuck also left a prestigious firm,
Covington and Burling, in the early 1990's to serve his
community, in his case as D.C. Corporation Counsel. I think the
move was Chuck's way of giving something back, even though he
had already given a great deal to the American people. And it
also seems to me that, Mr. Mueller, your record of service to
the community and to the country is one that anyone would be
proud of.
There is no doubt that you will need to muster all of your
experience, training, and character to execute this new
assignment. You will step into the FBI, an organization of
nearly 28,000 employees, at a time of some disruption caused by
several high-profile embarrassments, all of which I am sure
will be mentioned during this hearing, and maybe mentioned more
than once.
Regardless of whether these incidents are isolated rather
than systemic, they will nevertheless prove challenging, if for
no other reason than the fact that they have garnered
significant public attention and have fueled significant public
concern.
Of course, you will not be starting from scratch and you
will not be working alone. You will be the inheritor of the
hard work of another extraordinary public servant, Director
Louis Freeh. Director Freeh accomplished a great deal during
his tenure to modernize and restructure the FBI so it can
handle the challenges of the future. But as Senator Leahy has
pointed out, even he was unable to get it all done in the time
that he was there. He did reinvigorate the Bureau with the core
values of obedience to the Constitution, respect for all those
it protects, compassion, fairness, and uncompromising
integrity.
Another tremendous advantage you will have is the support
of the Bush administration and Attorney General Ashcroft in
particular. Attorney General Ashcroft has already demonstrated
his genuine concern for and dedication to the FBI by taking
dramatic and important steps to remedy some of the perceived
challenges faced by the Bureau. The review headed by William
Webster, the former FBI Director himself, the management study
to be conducted by Arthur Andersen and the expansion of
jurisdiction of the Justice Department's Inspector General all
demonstrate that General Ashcroft is determined to uncover any
opportunities to improve the FBI and is determined to help you
take the Bureau to new heights of professionalism.
Now, I hope and expect that Congress will be another source
of support. Of course, Congress--and this committee in
particular--has an important oversight role that involves
asking tough questions and demanding complete answers. The
Congress should be careful to act in ways that encourage
positive change and avoid distracting the Bureau from its
mission. One tool I want to give to the new Director is the
benefit of an independent review of the agency by a blue-ribbon
panel of outstanding outside experts from a variety of fields.
So I have joined with Senator Schumer in sponsoring the
Schumer-Hatch FBI Review Commission Act of 2001, which would
establish a mechanism for a first-rate group of experts from a
variety of fields like management, technology, intelligence,
and others to do a thorough review of the FBI and make
strategic recommendations for improvements. Such an independent
group, with no turf to protect or axes to grind, could really
help bring the best practices of the corporate and scientific
worlds to bear on all of the challenges currently being faced
by the FBI.
One frustration that you will undoubtably feel is that when
the FBI does its job well, we will never hear about it. The
newspaper headlines will never read, ``Millions of Americans
Slept Safely Again Last Night.'' The Washington Post will never
publish a story proclaiming that, ``Another Day Passes Without
Nuclear Terror in any U.S. City.'' Nevertheless, the main focus
of the FBI is to prevent crime by gathering intelligence,
compiling evidence, and assisting in prosecutions. Indeed,
between October 1993 and October 1999, the FBI prevented more
than 40 potential acts of terrorism, including the planned
detonation of two enormous propane gas tanks near Sacramento,
California, which would have resulted in the deaths of at least
12,000 of our citizens. There are others that had the equal
potential to do tremendous damage.
I again applaud President Bush for his choice of you, Mr.
Mueller, to be FBI Director. You are a principled and dedicated
public servant with a proven record in law enforcement and
management. You have a no-nonsense style which I think has
served you very well and has helped you to inspire others to do
their best work for the American people. Now, I have every
confidence that you will prove to be an excellent FBI Director,
and I know that will happen.
I want to thank the chairman for this hearing, and I urge
the committee and the full Senate to move forward with Mr.
Mueller's confirmation with all deliberate speed, and I just
want to thank you for being willing to serve your country in
this way, and I want to thank your family, your wife in
particular, the rest of your family, because this is taking on
an awful lot of responsibilities, and sometimes it means many,
many days and nights away from home and many, many hours away
from home. So we appreciate you as well, and, again, Mr.
Chairman, thank you for allowing me to make these comments.
[The prepared statement of Senator Hatch follows:]
Statement of Orrin G. Hatch, a U.S. Senator from the State of Utah, on
the Nomination of Robert S. Mueller, III to be FBI Director
One of the greatest pleasures of working on the Judiciary Committee
is reviewing a nominee for high office who not only has extraordinary
qualifications but also is a perfect fit for the job to which he or she
has been nominated. Of course, this Committee reviews a lot of
candidates who are qualified, competent and dedicated to public
service. But once in a while, a nominee comes along who exhibits an
extra measure of fitness for the job. We have such a nominee before the
committee today in Robert S. Mueller, III. It is hard to imagine anyone
whose unquestioned experience, good character and reputation would so
perfectly match with the requirements of his new position.
I do not say this lightly. I consider the FBI to one of the most
important agencies of the government, and the post of FBI Director to
be one of the most consequential in the world. The FBI Director is
trusted to command huge resources that touch the lives of people around
the globe. He is charged with protecting the most important resource in
America--our people--against criminal activity that is increasingly
sophisticated and resourceful. And the Director holds a term--ten
years--that exceeds that of any elected Federal representative, and is
2 years longer than any president can serve in office. The Director
thus has great power and great insulation from the popular will--a
combination that requires this Committee to be especially vigilant in
its confirmation review. But after examining Bob Mueller’s record,
meeting with him privately, and hearing from many people who know him,
I am extremely pleased that President Bush has chosen Bob Mueller for
this position. I have the utmost confidence that Mr. Mueller has the
judgment, integrity and dedication to purpose that will make for an
excellent FBI Director.
Mr. Mueller's Background
Mr. Mueller is a decorated military hero who has spent most of his
professional career prosecuting criminals and earning a reputation for
no-nonsense management. As I recently reviewed his responses to the
Committee questionnaire, I was particularly struck by two items on his
long list of professional accomplishments. The first is his military
record, a matter about which I was not previously aware. During the
Vietnam war, Mr. Mueller served as a rifle platoon commander and,
eventually, as an aide-de-camp to the Commanding General of the Third
Marine Division. He was awarded the Bronze Star, 2 Navy Commendation
Medals, the Purple Heart, and the Vietnamese Cross of Gallantry. And
his military service did not end there. After the war, Mr. Mueller
served in the Marine Corps Reserve until 1980, achieving the rank of
Captain.
The second particularly notable item is that in 1995, after 2 years
as the senior partner in distinguished firm of Hale and Dorr, Mr.
Mueller left to join the homicide section of the U.S. Attorneys office
in the District of Columbia. When I saw that, I was reminded, a bit, of
a man whom all of us admired a great deal (even though some of us
disagreed with his clients on certain issues): Charles Ruff, who died
last year. Chuck also left a prestigious firm--Covington and Burling--
in the early 1990's to serve his community--in his case, as D.C.
corporation counsel. I think the move was Chuck's way of giving
something back, even though he had already given a great deal to the
American people. And it also seems to me that Mr. Mueller's record of
service to community and to country is one that anyone would be very
proud of.
Mr. Mueller graduated from the University of Virginia law school in
1973, after which he spent 3 years working on small litigation matters
as an associate at Pillsbury, Madison & Sutro in San Francisco. He left
in 1976 to become an Assistant U.S. Attorney in San Francisco, first in
the civil division and later in the criminal division. There he tried
cases involving narcotics, money laundering, tax evasion, bank robbery,
and major fraud. He also spent 9 months prosecuting the Hells Angles
motorcycle club. He rose in the ranks to become supervisor of the
Special Prosecutions Unit and then interim Chief of the Criminal
Division.
In 1982, Mr. Mueller transferred to the U.S. Attorney's office in
Boston, Massachusetts, as Chief of the Criminal Division. For the next
6 years, he prosecuted narcotics, public corruption, and espionage
cases, among others. And he served as First Assistant U.S. Attorney, as
the court-appointed U.S. Attorney, and then as Deputy U.S. Attorney. In
1988 he joined the firm of Hill and Barlow as a litigation partner.
During his 10 months there, he practiced civil law including contract
disputes and some criminal defense.
Mr. Mueller became an Assistant to Attorney General Richard
Thornburgh in May 1989. His focus was advising the A.G. on criminal
matters. He also served as the liaison between the A.G.'s office and
the FBI, the DEA, and other Federal agencies.
President Bush nominated Mr. Mueller in September 1990 to be the
Assistant Attorney General for the Criminal Division. He served in that
position until 1993, handling the high-profile investigation of Pan Am
103, the prosecutions of Gotti and Noriega, and the BCCI and BNL
matters.
In 1993, he became a senior partner in the Washington office of the
Boston firm Hale and Dorr. As I mentioned earlier, he gave up that
prestigious and lucrative position in 1995 to join the homicide section
of the District of Columbia's U.S. Attorney's office. He tried a number
of cases there, and became chief of the homicide unit in 1996.
In August 1998, the Justice Department asked him to serve as the
interim U.S. Attorney for the Northern District of California, where he
turned a troubled office around and rebuilt it into one of the nation's
best. Under his leadership, the number of criminal prosecutions nearly
doubled in 2 years. He increased the office's focus on environmental
crime and public corruption. And he showed himself to be a visionary
leader in developing governmental responses to the burgeoning area of
computer crime. He was later nominated and confirmed as U.S. Attorney
there, where he supervises 100 attorneys. From January until May 2001,
he served as the Acting Deputy Attorney General.
By any measure, Mr. Mueller's resume alone makes him an excellent
candidate to be FBI Director. But the icing on this cake is the
reputation he has earned while holding those jobs. Mr. Mueller has
earned a reputation for, among other things, a no-nonsense toughness
when it comes to managing an office.
Current FBI Challenges
There is no doubt that Mr. Mueller will need to muster all of his
experience, training, and character to execute his new assignment. He
will step into the FBI--an organization of over 27,800 employees--at a
time of some disruption caused by several high-profile embarrassments,
including the handling of the McVeigh documents, the belated discovery
of the Hanssen spy case, and the troubled Wen Ho Lee investigation.
Regardless of whether these incidents are isolated rather than
systemic, they will nevertheless prove challenging--if for no other
reason, because they have garnered significant public attention and
fueled concern.
Director Freeh's Legacy and Attorney General Ashcroft's Support
Of course, Mr. Mueller will not be starting from scratch and will
not be working alone. He will be the inheritor of the hard work of
another extraordinary public servant, Director Louis Freeh. Director
Freeh accomplished a great deal during his tenure to modernize and
restructure the FBI so it can handle the challenges of the future. He
reinvigorated the Bureau with the core values of obedience to the
Constitution, respect for all those it protects, compassion, fairness,
and uncompromising integrity. He also made specific reforms in the area
of ethics. In 1996, Mr. Freeh established a new Office of Law
Enforcement Ethics and enhanced ethics training at the Bureau. In 1997,
he established an enhanced and independent Office of Professional
Responsibility to investigate allegations of employee misconduct. And
in 1998, he opened this issue to the public by beginning the practice
of releasing to the news media annual reports on disciplinary actions
taken by the OPR.
Director Freeh's legacy goes far beyond these specific actions. His
tenure will be noted for the successful investigation and resolution of
the World Trade Center bombing in 1993, the Alfred P. Murrah Federal
Building bombing in 1995, the so-called Unibomber case, and the Embassy
bombings in East Africa in 1998. Even more profound--and largely
ignored by the media and the public--are the preventative successes
under Director Freeh's watch. Between October 1993 and October 1999,
the FBI prevented more than 40 potential acts of terrorism, including
the planned detonation of two enormous propane gas tanks near
Sacramento, California, which could have resulted in over 12,000
deaths. Other notable projects of Director Freeh's in the area of
national security include the creation of the National Infrastructure
Protection Center, the Strategic Information Operations Center, the
Counterterrorism Division, the Weapons of Mass Destruction Operations
Unit, and the National Domestic Preparedness Office.
The list of Director Freeh's other accomplishments would go on and
on. His successes in several areas are too numerous to mention,
including the areas of violent crime, organized crime, drug
trafficking, health care fraud, crimes against children, and civil
rights. He also significantly improved the Bureau's training programs,
relationship with the CIA, and coordination with foreign governments.
As you can tell, I am a big fan of Director Freeh and the great work he
did as FBI Director. And I am confident that his legacies will in many
ways enable Mr. Mueller to achieve even greater things in the future.
Another tremendous advantage Mr. Mueller will have is the support
of the Bush Administration and of Attorney General Ashcroft in
particular. Attorney General Ashcroft has already demonstrated his
genuine concern for, and dedication to, the FBI by taking dramatic and
important steps to remedy some of the perceived challenges I mentioned
a minute ago. For example, Attorney General Ashcroft established an
independent review board headed by William Webster to examine the FBI's
procedures, including security measures, in the wake of the Hanssen
case. He recently contracted with Arthur Anderson to conduct a
management study of the FBI. And he expanded the jurisdiction of the
Justice Department's Inspector General to include oversight over the
FBI--an important step in ensuring the integrity of the Bureau and its
employees. These actions demonstrate that Attorney General Ashcroft is
determined to uncover any opportunities to improve the FBI and is
determined to assist Mr. Mueller in taking the Bureau to new heights.
FBI Review Commission Act
I hope and expect that Congress will be another source of support
for Mr. Mueller. Of course, Congress--and this Committee in
particular--has an important oversight role that should and must
involve asking tough questions and demanding complete answers. But
Congress should be careful to act in ways that encourage positive
change and avoid distracting the Bureau from its mission. One tool I
want to give to the new Director is the benefit of an independent
review of the agency by outside experts from a variety of fields. I
have joined with Senator Schumer in sponsoring the Schumer-Hatch FBI
Review Commission Act of 2001, which would establish a mechanism for a
first rate group of experts from a variety of fields like management,
technology, intelligence and others to do a thorough review of the FBI
and make strategic recommendations to the new Director for
improvements. Such an independent group, with no turf to protect or
axes to grind, could really help bring the best practices of the
corporate and scientific worlds to bear on the challenges currently
facing the FBI.
I know there will be a lot of suggestions for improvements to the
FBI. Some are underway, others are being developed. We in Congress are
right to scrutinize the plans for reform and to be vigilant in our
oversight. We will not blindly accept changes, but will question and
test them to ensure they will address the problems which exist. Through
this process, and by working in collaboration with the Justice
Department and the new FBI Director, I hope Congress will prove to be a
constructive part of a revitalization of the FBI.
Focus on Future Success
One of the reasons why the FBI's public image has been harmed by
the recent stories is that, when the FBI does its job well, we never
hear about it. This is the nature of law enforcement work in general,
and of the FBI's in particular. The newspaper headlines will never read
``Millions of Americans Slept Safely Again Last Night.'' The Washington
Post will never publish a story proclaiming that ``Another Day Passes
Without Nuclear Terror in any U.S. City.'' Nevertheless, the main focus
of the FBI is to prevent crime by gathering intelligence, compiling
evidence, and assisting in prosecutions. It is my sincere hope and
expectation that, during the next few months and throughout Mr.
Mueller's term as Director, all of the various parties with an interest
in the FBI will maintain this focus on crime prevention and will
measure their words and actions against the goal of ensuring future
success.
Conclusion
I applaud President Bush for his choice of Bob Mueller to be FBI
Director. He is a principled and dedicated public servant with a proven
record in law enforcement and management. His no-nonsense style has
served him well and has helped him inspire others to do their best work
for the American people. I have every confidence that he will prove to
be an excellent FBI Director.
I thank the Chairman for this hearing, and I urge the Committee and
the full Senate to move forward with Mr. Mueller's confirmation with
all deliberate speed.
Chairman Leahy. What I intend to do is to give the Senators
here today an opportunity to give opening statements, and we
will go back and forth following the early bird rule.
Mr. Mueller, I hope as you hear these statements, comments
both good and bad, that you won't change your mind. The
President spent a lot of time on this nomination. Attorney
General Ashcroft has spent a lot of time. I happen to agree
with both the President and the Attorney General that they made
a great choice, so don't change your mind no matter what we say
here.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman. Thank
you. Welcome, Mr. Mueller, and congratulations on your
nomination. I do applaud you, Mr. Chairman, for holding the
hearing so soon after the President sent Mr. Mueller's
nomination to the Senate. I rescheduled the meetings I had
planned in Wisconsin this morning and returned to Washington
sooner than usual in order to participate in the hearing. And
that is because, of course, this nomination should receive
speedy consideration. Our Nation's leading law enforcement
agency has no leader and is reeling from a series of missteps
and mismanagement. The FBI is in desperate need of strong
leadership.
But from what I have learned so far, I believe Mr. Mueller
may well be the right person for the job.
I appreciated your taking the time to meet with me last
week. I was impressed by your sense of purpose and readiness
for the job. As I said during our meeting, I think this is an
enormously challenging undertaking. But it is also really a
great opportunity for you to show this committee and, more
importantly, our Nation some real results.
You are arriving at the FBI at a very difficult time. The
Bureau's setbacks and missteps in recent years form a now
familiar and, unfortunately, fairly lengthy list: the missing
McVeigh documents, the Hanssen case, Los Alamos and the Wen Ho
Lee case, the years-late production of the tapes in the
Birmingham bombing, problems in the FBI lab, Richard Jewell and
the Olympic bombing, charges of racial bias in promotions at
the FBI.
We know, of course, on the other hand, that the history of
the FBI includes some storied successes. Maybe the greatest
triumph of the FBI, as was suggested by the statement that
Senator Hatch just made, has been the terrorist attacks that
never happened. While the FBI over the years has had its lapses
in respecting the civil liberties of some Americans, and those
episodes should continue to serve as a cautionary note for
those who wish to give unfettered power to any law enforcement
agency, perhaps the greatest achievement of the Bureau has been
that it has done so well in solving crime and foiling
conspiracies while operating in a Nation that so respects
individual liberty.
Moving beyond the specific missteps of recent years, I
would emphasize the following more general concerns:
First, I am very troubled by what appears to be an agency
with no internal or external accountability. It strikes me that
the management structure has to be reshaped so that the
mistakes are discovered earlier and corrected more quickly and
directly.
Second, there are a number of areas where the FBI can
improve its level of professionalism. Coordination between
State and Federal law enforcement should be strengthened and
improved. There should not be a competition for glory in high-
profile investigations. The goal is to stop crime and catch
criminals, not to get headlines or credit.
I firmly believe that for the most part, the FBI has been a
model law enforcement agency. But, obviously, the high-profile
problems that have come to light in recent years suggest even
bigger problems that could possibly linger under the surface.
These issues have to be addressed--if for no other reason than
to restore the public's trust and confidence in the Bureau. It
is up to you not only to find out what has happened in the past
and take appropriate action, but to learn from these mistakes
and make sure they don't happen again.
You have impressed me as a person who has deep respect for
the Bureau and its history and for the dedicated professionals
who work there, but who is also willing to look at the Bureau
with a very critical eye and a willingness to shake things up,
to demand a high standard of integrity and fairness and
professionalism in all aspects of its work. I think you will
find that the Senators on this committee will support you and
work with you to help the FBI overcome these recent black eyes
and then resume its place in the forefront of American law
enforcement.
So I plan to ask you some questions later about how to meet
some of these challenges, but I certainly look forward to your
testimony. And thank you again, Mr. Chairman.
[The prepared statement of Senator Feingold follows:]
Statement of Hon. Russell D. Feingold, a U.S. Senator from the State of
Wisconsin on the Nomination of Robert Mueller to be the FBI Director
Thank you, Mr. Chairman. Welcome, Mr. Mueller, and congratulations
on your nomination.
Mr. Chairman, I applaud you for holding this hearing so soon after
the President sent Mr. Mueller's nomination to the Senate. I
rescheduled the meetings I had planned in Wisconsin this morning and
returned to Washington sooner than usual in order to participate in
this hearing. This nomination should receive speedy consideration
because, as we all know, our nation's leading law enforcement agency
has no leader and is reeling from a series of missteps and
mismanagement. The FBI is in desperate need of strong leadership.
From what I have learned so far, I believe Mr. Mueller may well be
the right person for the job.
Mr. Mueller, I appreciated your taking the time to meet with me
last week. I was impressed by your sense of purpose and readiness for
this job. As I said during our meeting, I think this is an enormously
challenging undertaking. But I also believe it is an enormous
opportunity for you to show this Committee, and more importantly our
nation, some real results.
You are arriving at the FBI at a very difficult time. The Bureau's
setbacks and missteps in recent years form a now familiar and
unfortunately fairly lengthy list: the missing McVeigh documents, the
Hanssen case, Los Alamos and the Wen Ho Lee case, the years-late
production of the tapes in the Birmingham bombing, problems in the FBI
lab, Richard Jewell and the Olympic bombing, charges of racial bias in
promotions at the FBI.
We know of course that the history of the FBI includes some storied
successes. Maybe the greatest triumph of the FBI has been the terrorist
attacks that never happened. While the FBI over the years has had its
lapses in respecting the civil liberties of some Americans, and those
episodes should continue to serve as a cautionary note for those who
wish to give unfettered power to any law enforcement agency, perhaps
the greatest achievement of the Bureau has been that it has done so
well in solving crime and foiling conspiracies while operating in a
nation that so respects individual liberty.
Moving beyond the specific missteps of recent years, I would
emphasize the following more general concerns. First, I am very
troubled by what appears to be an agency with no internal or external
accountability. It strikes me that the management structure must be
reshaped so that mistakes are discovered earlier, and corrected more
quickly and directly. Second, there are a number of areas where the FBI
can improve its level of professionalism. Coordination between state
and Federal law enforcement should be improved and strengthened. There
should not be a competition for glory in high profile investigations.
The goal is to stop crime and catch criminals, not to get headlines or
credit.
I firmly believe that for the most part, the FBI has been a model
law enforcement agency. But obviously, the high profile problems that
have come to light in recent years suggest even bigger problems that
may linger under the surface. These issues must be addressed--if for no
other reason than to restore the public's trust and confidence in the
Bureau. It is up to you not only to find out what has happened in the
past and take appropriate action but to learn from these mistakes and
make sure they don't happen again.
You have impressed me as a person who has deep respect for the
Bureau and its history and for the dedicated professionals who work
there, but who is also willing to look at the Bureau with a very
critical eye and a willingness to shake things up, to demand a high
standard of integrity and fairness and professionalism in all aspects
of its work. I think you will find that Senators on this Committee will
support you and work with you to help the FBI overcome these recent
black eyes and resume its place in the forefront of American law
enforcement.
So, I plan to ask you about how you plan to meet some of these
challenges, and I look forward to your testimony. Thank you again, Mr.
Chairman.
Chairman Leahy. I thank you, Senator Feingold, and I thank
you for rearranging your schedule, as others have, to be here.
Normally I would go next to Senator Specter, but Senator
Thurmond, who is the most senior member of not only the Senate
but of this committee, is here and we will follow our usual
courtesy, and I will defer to Senator Thurmond.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Mr. Chairman, I am pleased we are holding
this hearing today on the nomination of Bob Mueller to be FBI
Director. The FBI is the premier law enforcement organization
in the world, and we should be proud of the work that its
dedicated agents do every day in the fight against crime.
However, the Bureau today faces some serious challenges. It
must address management problems and accounting flaws that
recently have received a great deal of public scrutiny.
Moreover, the culture of the FBI needs to be more open and
cooperative.
I think that Mr. Mueller is an excellent choice to lead the
Bureau at this critical time. He is a career Federal prosecutor
with extensive experience in management. He has a proven record
of success, and I am confident that he will be a fine Director.
I look forward to his quick confirmation.
Chairman Leahy. Thank you, Senator Thurmond.
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
Mr. Mueller, I join my colleagues in welcoming you here.
The FBI Director arguably may be the most powerful man in the
United States because the FBI Director has a statutory term of
10 years, which is 2 years longer than the maximum a President
may serve. And the FBI Director commands an enormous array of
investigators and has really broad discretion, even in one
instance where the FBI Director declined to turn over national
security information to President Clinton because Director
Freeh concluded that the President himself was under a criminal
investigation. That is a standard and a sequence which I intend
to question you about as to whether the Director has that kind
of extensive authority, and I think it worth noting that in our
long office meeting and my call to you again last week, I have
tried to alert you to the questions which I intend to ask.
This hearing I think is really important as it will or
could set the standards for what is appropriate congressional
oversight. When we have had hearings involving Justices of the
Supreme Court of the United States, a decade later and more,
the Justices have commented about what happened at their
confirmation hearing. It is a little different because the
Justices are appointed for life, but these hearings do make an
imprint. And it is an opportunity for the Senators who have had
some background and experience to tell you what we think
oversight means and, candidly, to get commitments from you.
I believe that Director Freeh did about as good a job as
could be done under the circumstances that he worked under. I
analogize Director Freeh to the Dutch boy at the dike, running
around putting his fingers in all the holes. But nobody could
keep all the water from coming through. And I believe that
there is a culture of concealment in the FBI, and I think they
are concerned about an institutional image. And I believe that
is going to be very, very difficult for anyone to deal with,
even someone who has demonstrated the tenacity which you have.
And you and I have gone over in some detail the lines of
questioning that I intend to ask about how you would solve the
problem of the Waco documents for pyrotechnics used in April
1993 and not disclosed on voluminous documents until August
1999, or how in the McVeigh case subordinates in the FBI knew
about documents which were not turned over to McVeigh's
lawyers. Now, there is no doubt that was a horrible crime and
it merited the death penalty, but that does not gainsay the
obligation of the FBI and the prosecution to turn over those
documents.
Then there is the issue of oversight and the initiatives
which you will have to take. There was a dynamite memorandum in
the FBI file from December 1996, which recited a contact
between top FBI officials and top Department of Justice
official, where the Department of Justice official said that
they had to go easy on the campaign finance investigation,
because the Attorney General's job might hang in the balance.
That document was not disclosed until a wide-ranging subpoena
for the LaBella report by the subcommittee, which I chaired,
brought it to light. And I believe that the FBI had an absolute
mandatory duty to turn that over to the Oversight Committee,
and it was not done.
My yellow light is on, and I will conclude before the red
light goes on. But there were are quite a number of cases on
specifics that I intend to ask you about, and I do this in the
context of having great admiration for the FBI. I was trained
by the FBI when I was an investigator for the Office of Special
Investigations many years ago, and used FBI investigators in
the prosecution of cases in Philadelphia, notably the Teamsters
prosecution, and I admire the record that you bring here,
having volunteered after being the Assistant Attorney General
in charge of the Criminal Division to just try cases. And when
from time to time I am asked about my favorite job, it is not
Senator, not DA, but Assistant DA, a prosecutor. You will not
have that luxury much longer, Mr. Mueller. I think you will be
confirmed based on all I know today, although no commitments.
But this hearing I think will be very important for America to
set standards of congressional oversight. Thank you.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter. And I would
note that I will try to keep fairly well on schedule. We will
keep the hearing going long enough for everybody to have a
chance to ask whatever questions are necessary.
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman.
Congratulations, Mr. Mueller. As I told you in my office, I
appreciate very much the time you took to spend with me when
you were first appointed, and before I begin my statement, I
want you to know that I have read your statement that you are
going to present today, and I am pleased with many of the
points that you have made. I believe your comments are
responsive to the letter that I sent you last Friday. And I
also want you to know that I am not oblivious to the praise
that you have received, and the very good response that you
have gotten from the press with your appointment, as well as
the President for selecting you.
Mr. Chairman, Senator Hatch, thank you for holding today's
hearing. The FBI is in desperate need of a director who will
make drastic changes to the Bureau's management culture. This
person must be able to sweep out the culture of arrogance and
replace it with a culture dedicated to truth and honorable
service to the American people.
Three weeks ago you and I had a chance to meet and discuss
this culture, Mr. Mueller. The purpose of that meeting, as well
as today's hearing, was to examine whether you have the
qualifications and determination necessary to address this and
other problems facing the Bureau. In the three short weeks
since that meeting, the FBI's culture of arrogance has
continued to raise its ugly head. These most recent FBI
blunders are further eroding public confidence at the FBI,
whether or not it is up to the task the Nation has called upon
the Bureau to do.
Just a week after our meeting, the national papers were
filled with headlines that the FBI could not find their guns,
the FBI has lost or had stolen 440 firearms, 171 laptops. This,
of course, is inexcusable. The Inspector General is currently
conducting an investigation to determine the extent of the
damages, but we do know that one of those lost guns was used in
the commission of a homicide, and at least one of the laptops
contained classified information about two espionage cases.
These losses reflect a need for fundamental reform.
How can the public have confidence in a law enforcement
agency that allows its weapons and secrets to fall into the
hands of criminals and spies?
A day after that revelation, the public learned that the
FBI played favorites, because we had a hearing before this
committee. Four senior FBI agents testified that the Bureau has
dual standards for disciplining employees. According to these
men, Senior Executive Service employees are given slaps on the
wrist for their infractions, while the rank and file agents are
often punished to the letter of the law. And I thank you for
responding to this in your opening statement, as I have already
read.
Retired Special Agent John Werner, who investigated the
Ruby Ridge cover-up, testified before this committee, that,
quote, ``in the first investigation of Ruby Ridge, SES
Inspectors sought to protect certain fellow peers from
administrative discipline by conducting a sloppy and incomplete
investigation. At the same time, they were most willing to hang
lower level employees out to try.'' He further testified that
``this double standard has debilitated rank and file employees'
morale and,. . .is one of the reasons quality agents are
disinclined to enter the Career Development Program.'' End of
quote.
How can the public have confidence in the FBI when honest,
hardworking agents might be discourages from taking part in
management of the Bureau? How can the public have confidence
that the FBI will reform when a certain segment of the SES
personnel is motivated by self-interest and self-preservation?
Most recently, last Thursday, the public saw a good example
of how some SES employees abuse power. The Washington Times
reported that a group of FBI managers staged a conference
entitled, quote, ``Integrity in Law Enforcement'', end of
quote, that was merely a sham and a cover, so that senior FBI
manager could attain improper reimbursements for traveling to a
birthday party for veteran agent Larry Potts. According to The
Washington Times, ``more than 140 persons, including as many as
9 FBI executives and special agents-in-charge of the bureau
field offices, attended that October 9th, 1997 party.''
The Washington Times further reported that ``no one was
disciplined other than to receive letters of censure.'' How can
public have confidence in the FBI when senior agents are not
punished for this kind of behavior?
The most recent scandals are just more evidence of
problems. The FBI is suffering from management culture so
arrogant, that ignoring the rules and covering up is the order
of the day.
But not all the news is bad. In the weeks since our
meeting, two things have happened that have given us hope that
the problems at the FBI can be resolved. One of those is
Attorney General Ashcroft's decision on the Inspector General,
and the other one is the initiation and clarification of
actions that the new FBI Director can take to initiate reform.
That is the end of my statement. I congratulate you, make
note of the fact that you have done very well in leading reform
in the U.S. Attorney's Office in San Francisco, and if you are
approved, hopefully, that you will take decisive action at the
FBI.
Since I did not get through my statement, I would like to
have the entire thing put in the record.
[The prepared statement of Senator Grassley follows:]
Statement of Hon. Charles E. Grassley, a U.S. Senator from the State of
Iowa on the Nomination of Robert Mueller for Director of the Federal
Bureau of Investigation
Mr. Chairman, Senator Hatch, thank you for holding today's hearing
on the nomination of Robert Mueller to be Director of the FBI. The FBI
is in desperate need of a director who will make drastic changes to the
Bureau's management culture. This person must be able to sweep out the
culture of arrogance and replace it with a culture dedicated to truth
and honorable service to the American people.
Mr. Mueller, 3 weeks ago, you and I met in my office to discuss the
culture at the FBI. The purpose of that meeting, as well as today's
hearing, was to examine whether you have the qualifications and
determination necessary to address this and other problems facing the
Bureau. In the three short weeks since that meeting, the FBI's culture
of arrogance has continued to raise its ugly head. These most recent
FBI blunders are further eroding the public's confidence that the FBI
is up to the task their nation has called upon them to do.
Just a week after our meeting, the national papers were filled with
headlines that the FBI couldn't find their guns. The FBI has lost or
had stolen from them nearly 450 firearms and 184 laptop computers. This
is inexcusable. The Inspector General is currently conducting an
investigation to determine the extent of the damages, but we do know
that one of the lost guns was used in the commission of a homicide and
at least one of the laptops contained classified information about two
espionage cases. These losses reflect a need for fundamental reform.
How can the public have confidence in a law enforcement agency that
allows its weapons and secrets to fall into the hands of criminals and
spies?
A day after that revelation, the public learned that the FBI plays
favorites. In a hearing before this Committee, four senior FBI agents
testified that the Bureau has a dual standard for the disciplining of
employees. According to these men, Senior Executive Service (SES)
employees are given slaps on the wrists for their infractions, while
the rank and file agents are often punished to the letter of the law.
Retired Special Agent John Werner, who investigated the Ruby Ridge
cover-up, testified before this committee that ``in the first
investigation of Ruby Ridge, SES Inspectors sought to protect certain
fellow peers from administrative discipline by conducting a sloppy and
incomplete investigation. At the same time, they were most willing to
hang lower tier employees `out to dry'.'' He further testified that
``this double standard has debilitated rank and file employees' morale
and, . . . is one of the reasons quality agents are disinclined to
enter the Career Development Program.''
How can the public have confidence in the FBI when the honest hard-
working agent is discouraged from taking part in the management of the
Bureau? How can the public have confidence that the FBI will reform,
when a certain segment of the SES personnel is motivated by self-
interest and self-preservation?
Most recently, last Thursday, the public saw a good example of how
some SES employees abuse their power. The Washington Times reported
that a group of FBI managers staged a conference entitled ``Integrity
in Law Enforcement'' that was merely a sham and a cover, so that senior
FBI managers could obtain improper reimbursements for traveling to a
birthday party for veteran agent Larry Potts. According to The
Washington Times, ``more than 140 persons, including as many as nine
FBI executives and special agents-in-charge of bureau field offices,
attended the October 9, 1997, party.''
The Washington Times further reported that ``no one was disciplined
other than to receive letters of censure.'' This lack of discipline
directly counters the letter of the law. In 1994, Director Freeh issued
a ``Bright Line'' memo dictating that voucher fraud and the making of
false statements would result in dismissal. Had the rank and file done
this, they would have been fired. It appears that some senior managers
believe they are above the law.
How can the public have confidence in the FBI, when its senior
agents are not punished for this kind of behavior?
These most recent scandals are just more evidence of the problems I
outlined in my letter to you, which I'm submitting for the record. The
FBI is suffering from a management culture so arrogant that ignoring
the rules and covering up is the order of the day.
But, not all the news is bad. In the weeks since our meeting, two
things have happened that give us hope that the problems at the FBI can
be resolved.
First, I am pleased Attorney General Ashcroft has given the Justice
Department's Office of Inspector General the power to conduct
independent oversight of the FBI. This is a reform initiative I have
long advocated. The Attorney General's order directs that major
allegations of misconduct will no longer be handled by the FBI's Office
of Professional Responsibility, but will instead by handled by the
DOJ's Office of Inspector General. This is essential for reform.
Along these same lines, Senator Leahy and I will soon be offering a
bill that will make permanent what the Attorney General's order
accomplished regarding oversight of the Bureau and the reporting of
misconduct by FBI employees. It would also create a Deputy Inspector
General, whose sole responsibility will be oversight of the Bureau.
This bill is critical to having reform at the FBI.
Second, there has been some clarification about what actions the
new FBI Director can take to initiate reform. When we met in my office,
I asked you how much of a free hand you would have in cleaning up the
FBI. You didn't know the answer then, but I've since received a
response from a letter I wrote the Attorney General asking for the
answer. In that letter, the Assistant Attorney General for Legislative
Affairs outlined the extent to which, if you are confirmed, you will be
able to institute department-wide reforms and make staffing changes,
including changes at the senior staff and management level.
Specifically, Assistant Attorney General Bryant writes that ``the
FBI Director's authority in this area is broader than most of his
counterparts in other Department components.'' According to the letter,
the new FBI Director can reassign SES members within the first 120 days
following the appointment of a non-career supervisor. The ability to
move bad apples is critical to reform.
Mr. Mueller, you have sterling credentials and a great deal of
experience. I'm impressed by the way you reformed the U.S. Attorney's
Office in San Francisco. A similar overhaul is needed at the FBI. The
new director must be committed to fundamentally changing the Bureau's
management culture.
Chairman Leahy. All statements are put in the record in
their entirety.
Senator Thurmond has another hearing to go to. He will be
leaving, and we go then to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and it is great
to see Mr. Mueller, nominated to take one of the most important
positions in our country. It is a position that requires, in my
view, serious experience, great integrity, and a proven record
of accomplishment. And you have all of those things, Bob.
When I was in the Department of Justice, I was there 15
years, 12 years as United States Attorney, Bob Mueller's
reputation was known throughout the Department of Justice, and
he was known not for any political reason, but because he was
recognized as a professional's professional, a man whose skill
at doing the job assigned to him was second to none.
The Clinton administration recognized that when they kept
him in high positions of authority. He served as United States
Attorney twice, I believe, high positions within the Department
of Justice. He has personally prosecuted some of America's most
significant criminal cases, and as such, he has had to work on
a day-to-day basis closely with the FBI, as a prosecutor has to
do.
And in that position as a prosecutor, you are close to it
but not quite a part of it. I know from my conversations with
you Bob, that you know the great strengths of the Bureau, and
you love this agency greatly, but you also know it has some
problems, and I think you have had firsthand experience with
those and can deal with them. No doubt about it, your
experience in the Department of Justice and managing agencies
will help you in dealing with the budget. How to manage a
widespread large agency is a challenge for anyone. You need
some experience from that perspective, and you have that.
But most of all, Mr. Chairman, there is no doubt in my
mind, that there is no more professional prosecutor, no more
professional person in America with experience in the
Department of Justice, ready to handle the job of FBI Director
than Bob Mueller.
Your Marine experience is going to be needed, and I know
you will be able to handle that job well.
The FBI does need improvement. They need some review. I
support hearings that have looked into that. I have generally
supported Senator Grassley's very strong convictions that
changes are needed, and his view that there is a culture of
arrogance too much present within the top echelons of the FBI.
And I believe that is unfortunate, because by and large the
agents, every day, doing their work throughout this country,
are some of the finest people you will meet anywhere, any time.
They love their country. They love the honor of being an FBI
agent, and they do a special job.
I remember trying a pretty big case, lasted about 5 weeks,
and had a young female agent, who had worked her heart out on
it, and she was being cross-examined. And the lawyer said,
``Well, who all are special agents of the FBI? You call
yourself a special agent.'' And she said, ``Basically the
agents of the FBI.'' And he says, ``All of them?'' She said,
``Virtually all of them.'' And then he said, ``Well, it's not
so special, is it?'' And she replied, looking him dead in the
eye, ``It is to me, sir.'' And I think most agents believe that
it is a special calling and a great honor to carry that badge.
And we ought not to denigrate them in their work because errors
have occurred.
As I told Chairman Leahy earlier, we do need reform, we do
need good leadership. We do need your skills at this time, and
we expect that you will exercise your strong convictions to
improve this agency. But it is important that we not damage one
of the premiere law enforcement agencies in the world, the
premiere agency, in my view. I think in some ways much of what
was done with IRS was good, but there were some things done in
those hearings that probably went too far and damaged that
agency, and I do not believe that is necessary here. I believe
we can maintain the kind of reform that is necessary without
damaging the FBI.
They have a front-line challenge when it comes to public
corruption in America, terrorism, bank fraud and embezzlement,
huge threats on the integrity of the Federal Government system
that come at us from frauds and cheats and embezzlers from
every angle. That is a core responsibility. So we need the
agency strengthened, not weakened, and I look forward to
working with you in that regard.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. So far, Mr. Mueller, you have
heard more uniformity of thinking on this committee than you
normally will. I will move now to Senator Kyl?
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I think that is a
testament to the President's great good judgment in nominating
Mr. Mueller.
I am very glad that Senator Jeff Sessions got to precede
me. You could not have a more authentic and ringing endorsement
than from Senator Sessions, who more than anyone else on this
committee, has been there, and knows the qualifications of Bob
Mueller. So I appreciate, Jeff, the comments that you made, and
I think that does reflect, as the chairman said, the view that
we have.
Mr. Mueller, I read your statement, and on page 3--there
has been a lot of emphasis here about the positions of--or the
difficulties that the FBI has had, and I share the view. When
you first called me and told me of your nomination, I said,
``Well, Louis had his problems,'' and he has had a great
difficulty managing the agency with all of the problems that
people have noted.
But you also refer to the notable success stories of the
agency. And as the former chairman of, and now ranking member
of, the Terrorism and Technology Subcommittee, we are privy to
a lot of that. The public generally does not get to hear about
the success stories because it is all classified, we cannot
talk about it. But Louis Freeh testified each year before our
subcommittee that each year there were about a dozen major
terrorist incidents that were thwarted by the good work of the
FBI and other law enforcement agencies. And we need to bear in
mind that whatever we do, has to be able to maintain that kind
of quality work.
We just held a hearing in our subcommittee on the NIPC, the
National Information Infrastructure Protection Center, dealing
with cyber crime and terrorism, and we are hoping that some
improvements there can be made, and we will be having to talk
to you more about that.
But my point is simply this: that because of the problems
with the FBI, we have got to regain the confidence of the
American people to support some things that the FBI needs to
continue to fight this war against terrorism and crime. The
techniques of criminals and terrorists are changing. They are
using the computers now, the information infrastructure, and we
have got to be able to keep up the pace here. And part of what
you and I have talked about, and Director Freeh have talked
about, is the need to modernize both the law and the FBI's
capability of keeping track of these criminals. You have noted
the need to upgrade the computer systems, which are woefully
inadequate now. The other side, the bad guys, have better stuff
than the FBI. That cannot be.
The same thing is true with the law. By using computers
now, messages can be transmitted a lot faster than the FBI can
run through each jurisdiction, getting various kinds of
warrants that may be needed to intercept the information, which
is why the previous Director has asked for trap-and-trace
authority, administrative subpoena authority, and some other
changes in the law just to keep up with the evolving
technology. We have not been able to get those things because,
among other things, the FBI has been under enough of a cloud
that people just have not felt comfortable cooperating to that
extent.
We need to do our job and give you those kind of resources,
but it will be a lot better, a lot easier, when the public has
confidence that the FBI has turned the situation around and can
handle this new authority, can handle this new authority with
the proper respects for the Constitution, the citizens and the
law, that that kind of rather far-reaching authority does give
to the FBI.
You have been described as a no-nonsense kind of man. That
is exactly the kind of person we need in this position at this
time, and I am very much looking forward to working with you to
restore the credibility of the FBI. That is half of it. But to
enable the FBI to continue to do all the great things that it
has also been doing, not all of which always are in the public
eye.
Thank you, Mr. Chairman.
Chairman Leahy. Mr. Mueller, would you please stand and
raise your right hand. Do you swear or affirm that the
testimony you will give before this committee will be the
truth, the whole truth and nothing but the truth?
Mr. Mueller. I do.
Chairman Leahy. Mr. Mueller, you have heard the opening
statements of the members so far. You must know that in this
committee, on both sides of the aisle--you have met with most
of us, not all of us--there is an enormous amount of respect
for the FBI; at the same time a great concern for some problems
that have arisen. I know so many FBI agents personally, many I
worked with when I was a prosecutor. At least one is a very
close friend, boyhood friend of my son, whom your son-in-law
apparently knew in college. I have seen FBI agents who have put
their lives on the line for all of us. As has been mentioned by
Senator Kyl, there are a lot of things they have done that the
public does not know about, and frankly, we cannot let the
public know about, because in the areas of terrorism we have
been successful, and we want to be successful a second time, a
third, and fourth, and fifth time. So we want to preserve all
of that, but we also want to remove some of the problems that
each one of us have mentioned to you.
I referred in my opening statement to testimony from four
FBI agents who testified at our last hearing. Mr. Mueller, I
apologize I began on that, I did not allow you to give your
opening statement. Obviously, obviously you should, and I do
apologize. And you have as much time as you want even if it
comes out of my time after that.
Mr. Mueller. I was getting ready for the first question,
Mr. Chairman.
Chairman Leahy. No, no, no. I mean this is not an
antagonistic committee, as you probably have gathered. I hate
to take all the suspense out of it for the press, but please go
ahead with yours.
STATEMENT OF ROBERT S. MUELLER, III, OF CALIFORNIA, NOMINEE TO
BE DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION
Mr. Mueller. Thank you. Thank you, Chairman Leahy, Senator
Hatch, members of the committee. Thank you for the
extraordinary courtesy and support that you have extended to me
over the past several weeks. I want to especially express my
appreciation to you, Mr. Chairman, for your willingness to
schedule this hearing and begin the formal consideration of my
nomination.
I was deeply honored when President Bush decided to
nominate me for the position of Director of the Federal Bureau
of Investigation. In my view, the FBI is the finest law
enforcement agency in the world. Its highly skilled and
dedicated work force and its investigative tools and resources
are unmatched in law enforcement. I consider it the highest
privilege to be asked to lead such an outstanding organization.
Mr. Chairman, I have spent nearly my entire professional
life in law enforcement. I have either personally prosecuted or
supervised the prosecution of just about every type of Federal
criminal offense, including homicide, drug trafficking,
organized crime, cyber crime, major frauds, civil rights and
environmental crime. I care deeply about the rule of law. In a
free society a central responsibility of government, I believe,
is to protect its citizens from criminal harm within the
framework of the Constitution. I have been fortunate indeed to
have been able to spend much of my career in pursuit of that
goal, and this is why I'm thankful to have the opportunity
today, if you choose to confirm me, to serve as Director of the
Federal Bureau of Investigation.
As several senators have mentioned, one can hardly
overstate the significance of the FBI in the life of every
American, from the prevention of mass murder by international
terrorists, to the painstaking search for a missing child, the
Bureau is on the front line every day in the battle against
terrorism and violent crime. Whether it is fraud in our health
care system, foreign or economic espionage, crimes against
children on the Internet, public corruption, civil rights
violations, bank robbery, tracking down serial killers, or
simply conducting a background check on a prospective gun
purchaser, the FBI is vital to the preservation of our civil
order and our civil rights.
And while new technologies create new possibilities for the
global economy, they also present new opportunities for
enterprising criminals. Here, as well, the FBI is responsible
for ensuring the security of our technological infrastructure
and for bringing cyber criminals to justice.
But it is more than just a mission of the FBI which has
brought it such distinction in its nearly 100-year existence.
It is the people. Throughout the Nation, thousands of young men
and women dream about serving in the FBI. This is a credit to
the dedication, professionalism, and training of the men and
women who are proud to serve in the FBI and who often risk
their lives on behalf of us all.
Every year the FBI conducts thousands of investigations
encompassing nearly millions of contacts with other law
enforcement agencies, the courts, witnesses, and crime victims.
The vast majority of these endeavors result in successful
prosecutions free of constitutional error. As a Federal
prosecutor who has tried many cases, I have relied upon the
FBI's investigative efforts on countless occasions.
Yet, despite all of the positive things that can be said
about the FBI, and have here today been said about the FBI, we
all know that the Bureau's remarkable legacy of service and
accomplishment has been tarnished by some serious and highly
publicized problems in recent years. Waco, Ruby Ridge, the FBI
lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents--
these familiar names and events remind us all that the FBI is
far from perfect and that the next director faces significant
management and administrative challenges.
We must, and we will, confront these challenges squarely
and forthrightly. At the same time, we must acknowledge that
these problems do not tell the whole story of the FBI in recent
years. The FBI has had an astonishing success during the same
period; successes, including the investigations into the
downing of Pan Am 103, and the World Trade Center, Oklahoma
City, and African embassy bombings. Of course, given the nature
of the work it does, many of the FBI's most notable successes
are stories that never can publicly be told.
Most importantly, we must not let the recent problems
obscure the fact that the men and women of the FBI have
continued, throughout this period of controversy, to do an
outstanding job. The day-to-day work of thousands of skilled
agents and employees is responsible for countless successes
that will never make the headlines. Their sacrifice for the
cause of public safety, often at great personal risk, must not
be lost in the tumult of criticism and publicity.
Nevertheless, it is critical to the continued success and
improvement of any organization to acknowledge and learn from
its mistakes, and the FBI is no different. The success of its
law enforcement mission lies in the preservation and protection
of the public trust. And it is clear that these highly
publicized problems have, indeed, shaken the public's trust in
the FBI. That shaken trust, in turn, inevitably affects the
morale of the men and women who serve at the Bureau.
All institutions, even great ones like the FBI, make
mistakes. The measure of an institution is in how it responds
to its mistakes. I believe the FBI can, and must, do a better
job of dealing with its mistakes. If I have the honor of being
confirmed by the Senate, I will make it my highest priority to
restore the public's confidence in the FBI, to re-earn the
faith and trust of the American people. The dedicated men and
women of the FBI deserve nothing less, and as director, I would
tolerate nothing less.
I am encouraged that Attorney General Ashcroft has already
taken several significant steps to address these challenges:
First, the Department has retained the services of a major
management consultant firm to undertake a comprehensive review
of the management structure and information systems of the FBI.
Second, the Attorney General has called upon former FBI and
CIA Director William Webster to conduct a review of the
Bureau's security program to try to ensure that the lapses
which allowed former Special Agent Robert Hanssen to betray his
country do not happen again.
Third, the Department's inspector general has been directed
to conduct an investigation of the Hanssen matter to determine
how his criminal activity was able to go undetected for such a
long period of time.
Fourth, the inspector general, in addition, is conducting a
review of the document production failures in the McVeigh case.
And, fifth, the inspector general's jurisdiction has been
expanded to include oversight of the FBI.
I believe that these measures are an excellent start in a
long-term process of modernizing the management practices of
the FBI and, if confirmed, I look forward to receiving the
recommendations of these various reviews.
But as we examine the mistakes of the past, we must be
resolved to respond quickly and forthrightly to the mistakes of
the future. Three elements are critical to a proper response:
First, we must be willing to admit immediately that a
mistake has occurred. This includes providing timely
information to the appropriate committees of Congress. And for
matters involving cases and courts, immediately informing the
court and defense counsel as appropriate. Failure to admit
one's mistakes contributes to the perception of institutional
arrogance.
Second, those responsible for the mistake must be held
accountable. This does not mean punishing employees for simple
errors in doing their jobs. Nobody is perfect, and we want to
encourage people to come forward immediately when mistakes are
made, but we must hold people accountable, and we cannot
tolerate efforts to cover up problems or to blame others for
them.
If confirmed, I will be committed to inculcating a culture
which understands that we all make mistakes and that we must be
forthright and honest in admitting them and correcting them as
quickly as possible. We must tell the truth and let the facts
speak for themselves. The truth is what we expect in our
investigations of others, and the truth is what we must demand
of ourselves when we come under scrutiny.
It is also very important that there be no double standards
in accountability. I know there have been allegations that
senior FBI officials are sometimes treated more leniently than
more junior employees. Any such double standard would be
fundamentally unfair and enormously destructive to employee
morale. If anything, senior FBI officials should be held to a
higher standard than other employees, for, after all, they
should serve as examples. I commit to this committee, to the
employees of the FBI, and to the American people that there
will be no such double standard should I become director of the
FBI.
And, third, every significant mistake must be examined to
determine whether broader reform is necessary. We must learn
from our mistakes or we will be bound to repeat them.
Of course, Mr. Chairman, my goal would be to minimize
mistakes through proper management. Let me, therefore, turn to
some additional management priorities that would guide me if
confirmed. Underlying these priorities is my belief that the
core asset of the FBI is its employees. I am committed to
providing the leadership, and management, and energy necessary
to enable these talented and dedicated people to do their jobs
as effectively as possible.
First and foremost of these management priorities is
leadership. It will be critical to recruit, encourage and
select the highest quality leadership. In my experience in
prior positions, and I am sure it would be the same if
confirmed as director of the FBI, is that selecting the very
best people will result in a management team that reflects the
diversity of our society.
Second, I will want to review carefully management
structures and systems. I am concerned about the span of
control, the degree of decentralization, and whether
responsibilities are clearly defined. Management structures and
systems must help managers, agents, and employees do their
jobs, not hinder them.
Third, I believe there is a need to rebuild infrastructure,
to upgrade the information systems and to upgrade the systems
and procedures to integrate modern technology. Every FBI
manager, indeed, every agent needs to be computer literate, not
a computer programmer, but aware of what computers can and
cannot do to assist them with their jobs.
Fourth, the FBI needs to review continually its priorities
and its allocation of resources to make sure it is able to meet
the challenges of tomorrow, as well as of today. Its
investigative priorities today are national security,
particularly counterterrorism, organized and violent crime,
civil rights enforcement, public corruption, high-tech and
cyber crime, and white collar crime, including health care,
fraud, and other complex frauds. We must anticipate the
challenges the Bureau will be facing 10 and 20 years into the
future and prepare now to meet those challenges. This will
require continuous revision and restructuring of these
investigative priorities.
And, fifth, the FBI must develop the respect and confidence
of those with whom it interacts, including other law
enforcement agencies, both domestic, and international, and
Congress. Most agents with whom I have worked have pride in the
FBI, but are in no way arrogant. Nonetheless, any perception of
Bureau arrogance must be dispelled. Close relationships are
founded on mutual trust and respect. We must understand and
acknowledge that State and local police departments are the
backbone of law enforcement in this country, and Federal law
enforcement is privileged to work side-by-side with them. We
must understand and acknowledge the need to work closely with
and obtain the support of Congress in order to appropriately
perform our duties. With humility, with humility, the FBI must
earn the respect and confidence of other law enforcement
agencies, the Congress and, most importantly, the American
people.
As I go about implementing changes to accomplish these
objectives, I welcome the thoughts of those currently at the
Bureau, as well as the results of the various reviews I
mentioned above. I have already benefited from considerable
experience with the FBI, as well as from detailed discussions
with many people, including members of this committee.
Finally, you should know that I understand the necessity to
move quickly on administrative and management issues. In prior
positions, I have made changes swiftly, as soon as I was
confident that I had the benefit of all views and was convinced
that the proposed changes would, indeed, improve the
organization. I intend to move quickly to make appropriate
changes should I be confirmed.
Mr. Chairman, the President has honored me with this
nomination. You and the members of this committee have added to
that honor by the courtesy and respect you have shown me in my
meetings with you. If confirmed, I look forward to working with
this committee to protect and preserve the rule of law. I
cannot promise perfection, but I can commit to you and to the
dedicated men and women of the FBI that I will do my very best
to earn your faith and your respect.
And to the American people whom we all serve, I will commit
to preserve the legacy of the FBI--now and in the future an
institution deserving of the highest level of their confidence
and their trust.
Thank you, Mr. Chairman, for the opportunity to appear
before you and the committee today.
Thank you, sir.
[The prepared statement and biographical information of Mr.
Mueller follow.]
Statement of Robert S. Mueller, III
Chairman Leahy, Senator Hatch, Members of the Committee, thank you
for the extraordinary courtesy and support you have extended to me over
the past several weeks. I want to especially express my appreciation to
you, Mr. Chairman, for your willingness to schedule this hearing and
begin the formal consideration of my nomination.
I was deeply honored when President Bush decided to nominate me for
the position of Director of the Federal Bureau of Investigation. In my
view, the FBI is the finest law enforcement agency in the world. Its
highly skilled and dedicated workforce and its investigative tools and
resources are unmatched in law enforcement. I consider it the highest
privilege to be asked to lead such an outstanding organization.
Mr. Chairman, I have spent nearly my entire professional life in
law enforcement. I have either personally prosecuted or have supervised
the prosecution of just about every type of federal criminal offense,
including homicide, drug trafficking, organized crime, cybercrime,
major frauds, civil rights and environmental crime. I care deeply about
the rule of law. In a free society, a central responsibility of
government, I believe, is to protect its citizens from criminal harm
within the framework of the Constitution. I have been fortunate indeed
to have been able to spend much of my career in pursuit of that goal.
And this is why I am thankful to be here today and to have the
opportunity, if you choose to confirm me, to serve as the FBI Director.
One could hardly overstate the significance of the FBI in the life
of every American. From the prevention of mass murder by international
terrorists to the pain-staking search for a missing child, the Bureau
is on the front line every day in the battle against terrorism and
violent crime. Whether it is fraud in our health care system, foreign
or economic espionage, crimes against children on the Internet, public
corruption, civil rights violations, bank robbery, tracking down serial
killers, or simply conducting a background check on a prospective gun
purchaser, the FBI is vital to the preservation of our civil order and
our civil rights.
And while new technologies create new possibilities for the global
economy, they also present new opportunities for enterprising
criminals. Here, as well, the FBI is responsible for ensuring the
security of our technological infrastructure and for bringing
cybercriminals to justice. But it is more than just the mission of the
FBI which has brought it such distinction in its nearly 100-year
existence. It is also the people. Throughout the nation, thousands of
young men and women dream about serving in the FBI. This is a credit to
the dedication, professionalism and training of the men and women who
are proud to serve in the FBI and who often risk their lives on behalf
of us all.
Every year the FBI conducts thousands of investigations
encompassing literally millions of contacts with other law enforcement
agencies, the courts, witnesses, and crime victims. The vast majority
of these endeavors result in successful prosecutions free of
constitutional error. As a federal prosecutor who has tried many cases,
I have relied upon the FBI's investigative efforts on countless
occasions.
Yet despite all of the positive things that can be said about the
FBI, we all know that the Bureau's remarkable legacy of service and
accomplishment has been tarnished by some serious and highly publicized
problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee,
Robert Hanssen, and the McVeigh documents--these familiar names and
events remind us all that the FBI is far from perfect and that the next
Director faces significant management and administrative challenges.
We must--and we will--confront these challenges, squarely and
forthrightly. At the same time, we must acknowledge that these problems
do not tell the whole story of the FBI in recent years. The FBI has had
astonishing successes during the same period, including the
investigations into the downing of Pan Am 103, and the World Trade
Center, Oklahoma City, and African embassy bombings's. Of course, given
the nature of the work it does, many of the FBI's most notable
successes are stories that can never be publicly told, either because
they are the prevention of crimes such as terrorist attacks or involve
sensitive intelligence sources and methods. Most importantly, we must
not let the recent problems obscure the fact that the men and women of
the FBI have continued throughout this period of controversy to do an
outstanding job. The day-to-day work of thousands of skilled agents and
employees is responsible for countless successes that will never make
the headlines. Their sacrifice for the cause of public safety--often at
great personal risk--must not be lost in the tumult of criticism and
publicity.
Nevertheless, it is critical to the continued success and
improvement of any organization to acknowledge and learn from its
mistakes. And the FBI is no different. The success of its law
enforcement mission lies in the preservation and protection of the
public trust. And it is clear that these highly publicized problems
have shaken the public's trust in the FBI. That shaken trust, in turn,
inevitably affects the morale of the men and women who serve at the
Bureau.
All institutions--even great ones like the FBI--make mistakes. The
measure of an institution is in how it responds to its mistakes. I
believe the FBI can--and must--do a better job of dealing with
mistakes. If I have the honor of being confirmed by the Senate I will
make it my highest priority to restore the public's confidence in the
FBI--to re-earn the faith and trust of the American people. The
dedicated men and women of the FBI deserve nothing less, and as
Director I would tolerate nothing less.
I am encouraged that Attorney General Ashcroft has already taken
several significant steps to address these challenges. First, the
Department has retained the services of a major management consultant
firm to undertake a comprehensive review of the management structure
and information systems of the FBI. Second, the Attorney General has
called upon former FBI and CIA Director William Webster to conduct a
review of the Bureau's security program to try to ensure that the
lapses which allowed former Special Agent Robert Hanssen to betray his
country do not happen again. Third, the Department's Inspector General
has been directed to conduct an investigation of the Hanssen matter to
determine how his criminal activity was able to go undetected for so
long. Fourth, the Inspector General, in addition, is conducting a
review of the document production failures in the McVeigh case. And
fifth, the Inspector General's jurisdiction has been expanded to
include oversight of the FBI. I believe these measures are an excellent
start in a long-term process of modernizing the management practices of
the FBI and if confirmed I look forward to receiving the
recommendations of these various reviews.
But as we examine the mistakes of the past, we must be resolved to
respond quickly and forthrightly to the mistakes of the future. Three
elements are critical to a proper response:
First, we must be willing to admit immediately that a mistake has
occurred. This includes providing timely information to the appropriate
committees of Congress. And, for matters involving cases in courts,
immediately informing the court and defense counsel as appropriate.
Failure to admit one's mistakes contributes to the perception of
institutional arrogance.
Second, those responsible for the mistake must be held accountable.
This does not mean punishing employees for simple errors in doing their
jobs. Nobody is perfect and we want to encourage people to come forward
immediately when mistakes are made. But we must hold people accountable
and we cannot tolerate efforts to cover up problems or blame others for
them.
If confirmed, I will be committed to inculcating a culture which
understands that we all make mistakes and that we must be forthright
and honest in admitting them and correcting them as quickly as
possible. We must tell the truth and let the facts speak for
themselves. The truth is what we expect in our investigations of
others, and the truth is what we must demand of ourselves when we come
under scrutiny.
It is also very important that there be no double standards in
accountability. I know there have been allegations that senior FBI
officials are sometimes treated more leniently than more junior
employees. Any such double standard would be fundamentally unfair and
enormously destructive of employee morale. If anything, senior FBI
officials should be held to a higher standard than other employees, for
after all they should serve as examples. I commit to this Committee, to
the employees of the FBI, and to the American people that there will be
no such double standard if I am Director of the FBI.
And third, every significant mistake must be examined to determine
whether broader reform is necessary. We must learn from our mistakes or
we will be bound to repeat them.
Of course, Mr. Chairman, my goal would be to minimize mistakes
through proper management. Let me, therefore, turn to some additional
management priorities that would guide me if confirmed. Underlying
these priorities is my belief that the core asset of the FBI is its
employees. I am committed to providing the leadership and management
and energy necessary to enable these talented and dedicated people to
do their jobs as effectively as possible.
First and foremost of these management priorities is leadership. It
will be critical to recruit, encourage and select the highest quality
leadership. And my experience in prior positions--and I am sure it
would be the same if confirmed as Director of the FBI--is that
selecting the very best people will result in a management team that
reflects the diversity of our society.
Second, I will want to review carefully management structures and
systems. I am concerned about the span of control, the degree of
decentralization, and whether responsibilities are clearly defined.
Management structures and systems must help the managers, agents and
employees do their jobs, not hinder them.
Third, I believe there is a need to rebuild infrastructure: to
upgrade the information systems, and to upgrade the systems and
procedures to integrate modern technology. Every FBI manager--indeed,
every agent--needs to be computer literate; not a computer programmer,
but aware of what computers can, and cannot, do to assist them with
their jobs.
Fourth, the FBI needs to review continually its priorities and its
allocation of resources to make sure it is able to meet the challenges
of tomorrow, as well as of today. Its investigative priorities today
are: national security, particularly counterterrorism; organized and
violent crime; civil rights enforcement; public corruption; high tech
and cybercrime; white collar crime, including health care fraud and
other complex frauds. We must anticipate the challenges the FBI will be
facing ten and twenty years into the future, and prepare now to meet
those challenges. This will require continuous revision and
restructuring of these investigative priorities.
And fifth, the FBI must develop the respect and confidence of those
with whom it interacts, including other law enforcement agencies, both
domestic and international, and Congress. Most agents with whom I have
worked have pride in the FBI, but are in no way arrogant. Nonetheless,
any perception of Bureau arrogance must be dispelled. Close
relationships are founded on mutual trust and respect. We must
understand and acknowledge that state and local police departments are
the backbone of law enforcement in this country, and federal law
enforcement is privileged to work side-by-side with them. We must
understand and acknowledge the need to work closely with and obtain the
support of Congress in order to appropriately perform our duties. With
humility the FBI must earn the respect and confidence of other law
enforcement agencies, the Congress, and, most importantly, the American
people.
As I go about implementing changes to accomplish these objectives,
I welcome the thoughts of those currently at the Bureau--as well as the
results of the various reviews I mentioned above. I have already
benefitted from considerable experience with the FBI, as well as
detailed discussions with many people, including members of this
Committee.
Finally, you should know that I understand the necessity to move
quickly on administrative and management issues. In prior positions I
have made changes swiftly, as soon as I was confident that I had the
benefit of all views and was convinced that the proposed changes would
indeed improve the organization. I intend to move quickly to make
appropriate changes should I be confirmed.
Mr. Chairman, the President has honored me with this nomination.
You and the members of this Committee have added to that honor by your
courtesy and respect in my meetings with you. If confirmed, I look
forward to working with this Committee to protect and preserve the rule
of law. I cannot promise perfection, but I can commit to you and to the
dedicated men and women of the FBI that I will do my very best to earn
your faith and respect. And to the American people whom we all serve, I
will commit to preserve the legacy of the FBI--now and in the future an
institution deserving of the highest level of their confidence and
trust.
Thank you Mr. Chairman for the opportunity to appear before you and
the members of the Committee today.
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Chairman Leahy. Thank you, Mr. Mueller. I appreciate very
much your statement. You seem to have anticipated many of the
questions that I, and others, might be asking. That also
reflects your candor in the lengthy meeting we had when we went
over these issues--and the meetings I know you have had with
other Senators. In the reports I have had, they have all been
very candid.
So I take a great deal of comfort in your answers, not just
what you are saying here to the committee, but I would hope,
beyond this committee. I would hope the thousands, thousands of
extraordinarily talented and dedicated men and women in the FBI
would take a great deal of comfort in them too. Ultimately,
their ability to carry out their mission rests in your hands,
and I think that you have sent a signal, a very good one, and
it should be one of great comfort to them.
You said the President has honored you with this
appointment. That is absolutely right. He has. It is a grave
responsibility on the part of the President and one I think he
has carried out very well. He is also the chief magistrate of
this country, and he has to put a great deal of his own
credibility on the line in appointing you. And so you have a
great duty not only to the President, but to all Americans in
carrying out that responsibility.
I referred in my opening statement to testimony from four
FBI agents who testified at a hearing last week. There is a
widespread perception in the FBI that there is a double
standard applied in meting out internal discipline. They spoke
to something you have already referred to in your statement.
The members of the Senior Executive Service typically receive
lesser punishment than line agents for the same offense.
Obviously, that is bad for the morale of the line agents. It
would breed cynicism and mistrust.
Former Director Freeh attempted to deal with this problem
last August when he abolished a special disciplinary mechanism
for FBI senior managers. I believe Director Freeh did the right
thing, as he did in many other areas, but I don't think that
has completely solved the problem. Is this a problem that needs
to be addressed by you, as director?
Mr. Mueller. To the extent that there is any perception
that there is a double standard, yes, it definitely has to be
addressed. As you indicated, Mr. Chairman, I think former
Director Freeh began that process with assuring that there is
no difference between the standards of discipline for senior
management in the FBI and employees of the FBI.
However, beyond that, I think it important that as one
contemplates leaders in the FBI, we appoint leaders in the FBI
who are held to a higher standard. And when the leadership of
the FBI fails or makes mistakes, the discipline should be just,
fair, but absolutely consistent with the discipline which would
be meted out by an individual of lesser rank.
Likewise, I believe that it is important to inculcate in
the FBI a standard whereby its leadership is held to not just
the standard of every agent, but to a higher standard, inasmuch
as I pointed out in my statement, I believe the leaders serve
as examples for others in the FBI.
Chairman Leahy. What I worry about is if we do not, and if
we do not show willingness to correct mistakes or to
acknowledge mistakes. You just said in your statement not
every--people are not perfect. Obviously, mistakes get made,
and usually you learn from the mistakes, but if there are
serious mistakes, sometimes the first reaction can be, it is a
human one, to hide the mistakes. But both you and I have served
in law enforcement, and we know that in law enforcement,
especially, if you hide your mistakes, usually somebody
innocent is hurt by it.
For example, the documents the committee reviewed about the
January 2001 decision on Ruby ridge revealed that some FBI
agents were disciplined in January 1995 by the then director,
when they should not have been. Senator Specter and I conducted
pretty extensive hearings on Ruby Ridge. But I look at this
report of January, I see nothing has been done to correct the
situation, despite the personal embarrassment I am sure that
discipline caused for those FBI agents.
Another example, is that there have been reports of a CIA
officer who was initially suspected of espionage before they
realized that Hanssen was the real culprit. This agent was
forced to go on leave from his job at the CIA, caused great
stress for himself and his family. The treatment his family
received was harsh. Among other things--the members of the
family were told this was a capital offense. Now he has been
cleared of all wrongdoing. He has been allowed to return to his
work at the CIA. His back-pay, full security clearance
restored. The FBI totally regrets this happened, but they have
not notified him or his family that he is no longer suspected
of any wrongdoing.
Can you take a look into some of these matters?
Mr. Mueller. I certainly would, Mr. Chairman. I go back to
time as a prosecutor, and it was important, in my mind, to
conduct investigations quickly and thoroughly, understanding
that an investigation done by the FBI, often in consultation
with the U.S. Attorney's Office, puts individuals under a
microscope and can damage reputations, can damage careers, and
it is critically important to do investigations quickly. And if
the allegations prove not to be true, to make certain that
those who were under scrutiny are told of that immediately and
to the extent possible any appropriate response given to that
individual who has been exculpated from the allegations.
Chairman Leahy. Just an inquiry by the FBI can cause a lot
of people's heartbeat to rise, even if they are not suspected
of anything. If they are told they are a suspect, and their
family and their friends are told they are a suspect, and then
afterward it is the case where they are not, we cannot treat it
like the old Gilda Radner line of ``oh, never mind.'' Somebody
has got to do more than that.
I recall when we had a terrible shootout along the New
Hampshire-Vermont border, coincidentally, on a weekend when
Director Freeh was visiting. A young man, one of the Federal
agents on the border was shot and grievously wounded. Several
others were killed. We went to the hospital, Director Freeh and
I. Just the two of us drove up to the hospital to visit this
young man. What I didn't know was that the hospital was under
an audit on Medicare questions by the U.S. Attorney's Office at
that time. We had several people who thought they were about to
be arrested immediately because the two of us were walking down
the halls. Director Freeh was not aware of the investigation,
nor was I, but I heard afterward that the Cardiac Unit of the
hospital almost had an overload that day.
[Laughter.]
Chairman Leahy. So I am just suggesting that that is an
innocent-type thing, but if somebody is really a target, and it
turns out they are not the person, like a Richard Jewell and
situations like that, somebody has to clear that up. I am not
suggesting we do not continue with investigations--obviously
not--but mistakes have to be cleared up.
Now, last week when we had a hearing, and I talked to you
about this earlier, FBI headquarters issued a weekly report to
the field, a report on our committee's July 18 hearing. It
described the testimony of two of the six FBI current or
retired employees who testified, and they put two of the
testimonies on their website. They said absolutely nothing
about the testimony of those in the FBI who testified about the
existence of a double standard or discipline and retaliation
within the FBI. It almost seems that FBI headquarters thinks
that if they ignore bad testimony, it is going to go away. This
bothered me, as there were some from headquarters who sat
through the testimony of all six and knew that was a mistake.
I would hope, I would hope that somehow, and I fully expect
you to be confirmed, but when you get down there, point out you
are going to improve the best of the best. But if some of us
ask questions up here, do not ignore the questions, look for
the answers.
I do not know if you want to refer to that at all.
Mr. Mueller. Probably, Mr. Chairman, to say that I do think
that it is important that everybody in the Bureau look at both
the good and the bad in order to address it. It is not only me,
as the director of the FBI, should I be confirmed, but it is
also senior management and the FBI agents who come forward with
those items that need changing and to directly confront
criticisms that are made at whatever level of the FBI, and as I
indicated in my statement, address those criticisms. And where
there are criticisms that are valid, take such steps that are
necessary to change that which needs changing.
Chairman Leahy. And will you give your commitment that if
you are ever pressured politically by the Republicans or
Democrats to affect an investigation, that you will resist that
pressure with all your might?
Mr. Mueller. Absolutely.
Chairman Leahy. Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman.
Mr. Mueller. May I just add, if I might?
Chairman Leahy. Sure.
Mr. Mueller. It is critically important for the FBI to
investigate crimes, allegations of crimes thoroughly,
professionally, objectively, and without interference
politically or otherwise. And when it does that, it then has
the credibility of the American people. And so to avoid
political pressures it is absolutely critical for the FBI to do
its job, as that job is expected to be performed by the
American people.
Chairman Leahy. I thank you for that. And I hope, I hope
the Senate will always stand here ready to protect you from
both sides of the aisle in that regard.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman.
Mr. Mueller, the FBI rarely works alone in criminal
investigations. In a significant number of its cases, the FBI
operates in tandem with a number of Federal, State and local
law enforcement agencies, and sometimes the other agencies'
involvement is due to overlapping jurisdiction in some cases,
but in some instances, the other agencies come to the FBI for
technical assistance or support. Now, the specialized areas of
computer crime and DNA testing immediately come to mind, but I
know there are many others.
Would you please explain to the committee your view of the
role the FBI should play in assisting other agencies,
particularly the State and local agencies in criminal
investigations?
Mr. Mueller. I, in the past, I have been fortunate to work
with the FBI and to see it work with other Federal
organizations closely and with State and locals. An example
would be the Pan Am 103 investigation, which the FBI and the
Scottish police worked diligently over 3 years to bring the
investigation of that disaster to the point where there could
be indictments. And when you are dealing with foreign law
enforcement agencies, it is sometimes exceptionally difficult
because they work under a difficult legal system.
I have had occasion to see in the District of Columbia here
what was called the Cold Case Squad, where you had homicide
detectives from the Metropolitan Police Department work closely
with the FBI to investigate homicides that could not be solved
immediately. I think every one of those--each of those
instances, and myriad others, where the FBI works closely with
the State and locals, you have an ability to combine the best
of both agencies--the technological wherewithal of the FBI,
sometimes the street smarts and other abilities of the State
and local law enforcement agencies, and that should be the goal
of the FBI in performing its law enforcement functions.
Senator Hatch. One of the areas of prosecution for which
you are particularly known is that of computer and intellectual
property crime. As U.S. attorney for the Northern District of
California, you created a section called the Computer Hacking
and Intellectual Property or CHIP.
Recently, Attorney General Ashcroft recognized your success
in the most sincere and flattering way possible, by announcing
the formation of nine additional CHIP units around the country.
As you know, a subset of this area, criminal copyright
enforcement, is of key importance to this committee. We have
devoted considerable energy over the past several years to
Internet enforcement in particular.
In 1997, we enacted the No Electronic Theft or the NET Act,
combining criminal penalties for certain noncommercial Internet
parts. In 1998, we passed the Digital Millennium Copyright Act,
or the DMCA it is called, which helps combat trafficking in
hacking devices designed to defeat technological protections
for copyrighted material.
We also enacted the Digital Theft Deterrence and Copyright
Damages Improvement Act to speed the implementation of the NET
Act and to improve online theft deterrence generally, and we
have even earmarked additional funding for DOJ, specifically
for the investigation and prosecution of cyber crime.
The committee's work is starting to bear fruit in the form
of criminal prosecutions of Internet piracy. So far this year
the number of NET Act prosecutions appears to be up, and we
have just recently seen the first criminal prosecutions brought
under the DMCA.
Just this week, the DOJ announced a--the Department of
Justice--announced a series of new prosecutions of Internet
crimes. I commended the Department of Justice for what I hope
is a commitment to cyber crime enforcement, and I hope this
becomes a priority for the FBI as well.
Would you please outline for us, if you can, your plans, as
FBI director, on protecting the Nation's computer
infrastructure and intellectual property.
Mr. Mueller. If I may go back briefly to what I saw when I
took over as U.S. Attorney in San Francisco, we had Silicon
Valley in my district, and one of the great issues was how do
you protect--not protect, but how do you combat high-tech
crime. And the first thing I had to do was determine what do
you mean by high-tech crime, and I came to the conclusion that
it should be broken down in four ways: first of all, computer
intrusions, denial of service attacks; second, theft of
intellectual property, economic espionage; third, frauds on the
Internet and distribution of child pornography on the Internet;
and, fourthly, the theft of high-tech components such as
computer chips, hard drives, and the like--all of which are
critical to the high-tech industry.
We put together a unit in San Francisco and in San Jose
because it was important to develop the expertise in the United
States Attorneys, the Assistant United States Attorneys who
would be handling these cases. It was important that we
developed the relationships between the FBI agents who had the
expertise to do these cases, the Assistant United States
Attorneys who were doing these cases, and the community. In
addressing high-tech crime, it is critically important that we
developed the relationships with those victims of high-tech
crime in the high-tech industry. And, consequently, we will
support--should I be confirmed as the Director of the FBI, the
FBI will support not only the unit that was set up in the
Northern District of California, but also the other units to be
set up, announced by the Attorney General last week.
One other point I might make, and this goes to the issue of
working closely with the State and local authorities. There are
too few investigators with the skills we need to address this.
And one of the developments that has been useful is what has
been known--or called a computer forensics lab, which was
established in San Diego with a number of contributing,
participating agencies, both Federal and local. And it is that
type of combined enterprise that we are going to have to adopt
if we are to address this new wave of separate technological
crime in the future.
Senator Hatch. Thank you. Mr. Mueller, as you know, the
2002 Winter Olympics in Salt Lake City, they are going to be
the largest planned public safety and law enforcement operation
in our country in the foreseeable future. The law enforcement
community, including the FBI, has been working on the plans and
preparations for several years. And one of the unique and
forward-thinking aspects of the plans is the invention of the
Utah Olympic Public Safety Command, which for the first time
has combined the Federal, State, and local law enforcement and
emergency management agencies under one entity to ensure
coordinated development and execution of the Olympic public
safety plans.
Now, I have studied the public safety issues and have
received the intelligence and securities briefings on them. In
May of this year, I held a Judiciary Committee field hearing in
which 11 top law enforcement and emergency management officials
from the Federal, State, and local levels discussed the
importance of cooperation among the various agencies in
preparing for the Winter Olympics in 2002.
Now, I feel very confident that the people who are working
on this project are taking their jobs seriously. They are
focused and I think on the right priorities. However, I am
convinced that it takes leadership from the very top of all
organizations to ensure successful execution, so I want to have
your assurance that you will treat the FBI's role in the
Olympics as one of the Bureau's top priorities, that you will
support and encourage your agents' efforts, and that you will
provide meaningful leadership to this important national and
international event.
Mr. Mueller. I will, Senator. I would expect to be
personally involved in those preparations so that I can assure
myself that the Bureau would be doing everything it can do to
contribute to the joint effort.
Senator Hatch. OK. Now, we understand that the FBI is now
requiring polygraphs for managers handling national security
matters. Are you willing to continue that approach?
Mr. Mueller. Yes.
Senator Hatch. And would you be willing to take a polygraph
yourself if that were the case?
Mr. Mueller. Yes, indeed, it is my belief you don't--this
may be my training from the Marine Corps, but you don't ask
people to do that which you're unwilling to do yourself. I have
already taken that polygraph.
Senator Hatch. The only reason I ask that question is
because I knew you had, and I just think it is important for
people to----
Chairman Leahy. How did you do?
Senator Hatch. Yes, how did you do?
[Laughter.]
Mr. Mueller. I'm sitting here. That's all I can say.
Senator Hatch. We just hope you had a good examiner, that
is all.
I understand that you took steps to address securities
fraud, and what role do you see the FBI playing in addressing
securities fraud in this country?
Mr. Mueller. Again, when I went out to my district in San
Francisco, with Silicon Valley being a substantial component of
the responsibilities there, securities fraud was something that
we felt needed to be addressed. And, consequently, after having
some feel for how the problem needed to be addressed, again, I
set up a unit, brought a very talented individual in from the
Southern--actually, the Eastern District of New York who had
done these types of cases, assigned agents to these cases, and
developed a very close relationship with the counterparts in
the SEC, and thanks to the work of that unit and those in it,
there have been a number of substantial prosecutions that flow
from it.
Securities fraud is often very difficult to investigate,
hard to prosecute, but the damage done to investors by
securities fraud is substantial. And the FBI should play a
substantial role along with the SEC in addressing it, and I
would expect that the Bureau would continue to accord manpower
to address that particular priority.
Senator Hatch. Well, thank you so much. I think there is no
question I am going to support your nomination. I am very proud
of you, proud of your willingness to serve and to give even
more of an effort for your country. And I am proud of your
family, as well, for supporting you.
Chairman Leahy. What Senator Hatch means is that he and I
will waive seeing the results of the polygraph test.
When you speak of the Marines, I swear I have heard from
virtually every Marine I know around the country about your
nomination. And as Mr. Mueller knows, when he called me at my
farm house in Vermont the day that he had been announced by the
President, I was on the other line with my son, who is a former
Marine, who told me I better take that call. So you already had
a lobby effort going in our family.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Mr. Mueller, the FBI has been accused of working too
independently of prosecutors, particularly in deciding what
evidence should be transferred to prosecutors. In other words,
the FBI sometimes appears to be making its own decisions about
whether evidence is potentially relevant and whether a case
should be pursued when these are decisions that should be made
by prosecutors. We have seen this arise most recently in the
Timothy McVeigh case where we still do not fully know why all
the documents were not turned over in a timely manner after
repeated requests from the FBI Director.
Unfortunately, we also know that this was not the only
occasion, the McVeigh situation, not the only time this ever
happened. There was the 1963 bombing of the 16th Street Baptist
Church in Birmingham, Alabama. In that case, it was not until
very recently that the FBI finally turned over all audiotapes
and other evidence to prosecutors who were seeking to prosecute
the remaining defendants in that cowardly, horrific bombing. It
is believed that people inside the FBI, as high as the Director
himself, J. Edgar Hoover, blocked the distribution to
prosecutors of critical information that could have led to the
prosecution of those responsible for this heinous act.
Now, you are, of course, in a unique position, having been
on the other side of this equation, the Federal prosecution
side. Mr. Mueller, do you share this concern? And if so, what
steps will you take to facilitate better communications and
working relationships between the FBI and Federal and State
prosecutors to ensure that justice is served?
Mr. Mueller. I do, being a prosecutor, I do share the
concern, Senator. There is no prosecutor that wants to walk
into a courtroom without knowing absolutely everything there is
to know about the case. And in the past, I have had occasions
where this has been an issue. The Pan Am 103 prosecution, the
Noriega prosecutions, are examples were there are issues
involving national security information that may bear on a
particular prosecution. But there may be very valid reasons for
keeping certain of the information from the prosecutors that go
into the court, although the prosecutors would not want that to
happen.
In those circumstances, we have had mechanisms to assure
that that information is scrubbed to make absolutely certain
that there is no Brady information, exculpatory information
that should be given to the defense. And there are mechanisms
such as the Classified Information Procedure Act that enables
us to keep certain of that information classified. The issue
comes up in cases like that.
More often, on a day-to-day basis, one of the problems that
I do think the FBI has is the inability to produce quickly
documents, and that I do believe is attributable in part to its
antiquated filing system.
FBI agents will tell you that when they go out and take
notes of an interview, they come back, pull off the notes from
the sheet of paper, fold it up, put it in what's called a 1A
envelope, and that 1A envelope is then put in an evidence
locker along with 150 or 200 other 1A envelopes. When the
prosecutor asks for everything in that case, often the agent
has to go, pull out that envelope, open the envelope, pull out
a piece of paper, take it to a copy machine, copy it, and get
it to the prosecutor--a disincentive to producing that which
should easily be produced.
My hope is, earlier rather than later, that the FBI could
be somewhat paperless; in other words, notes, when an FBI agent
comes back with handwritten notes, which FBI agents will,
they're imaged into a data base, coded so that in the future
anything, any document, any picture, any report, any
fingerprint report, for instance, or fingerprints themselves,
will be imaged into the data base and be immediately accessible
so that you do not have the problem such as you saw with the
prosecution of the McVeigh documents.
In that circumstance, the agents, FBI management, the
prosecutors, can all be assured that you have the foundation
for production of the documents.
Senator Feingold. Thank you for that answer very much. I
would like to turn now to an issue we talked about when we met
last week, and that is the electronic recordings of interviews.
I understand that currently FBI agents memorialize all
interviews as written reports or 302s and the field notes are
then destroyed systematically. And I think you were getting
into some of this area here.
Electronic recordings of interviews, audio or visual,
however, can be helpful to a jury in determining the
credibility of the evidence, particularly confessions. A
recording allows the listener to hear intonation and whether
questions are asked in a suggestive or coercive fashion. This
is a particularly growing concern as the FBI increases its
operations overseas. I understand that the FBI interviews non-
English-speaking persons through translators, but memorializes
the interviews simply by way of a written report in English.
Are you willing to consider requiring FBI agents to record
interviews electronically, which is a practice that would be
consistent with the practice of many law enforcement agencies
around the country?
Mr. Mueller. The short answer, Senator, is yes. If I may
explain, the Bureau had a longstanding policy, as I understand
it, of having no recordings of interviews. That policy was
changed--I'm not certain how recently--to allow recordings of
interviews upon the approval of the special agent-in-charge of
the office. And, consequently, my understanding is it's not a
hard and fast rule as it was previously.
Having worked homicides in the District of Columbia, I have
seen the advantage of the use of recording of interviews. On
the other hand, day in and day out FBI agents interview
thousands if not hundreds of thousands of people. If they're
doing background investigations for people like me, for
instance, they interview any number of people, and it would be,
I think, counterproductive to require recording and
transcribing of all such interviews. But certainly the practice
has been changed. We will continue to look at it, particularly
in an instance where it is important that a confession or
critical evidence relating to a terrorist attack needs to be
deciphered accurately with no room for error.
Senator Feingold. I look forward to continuing to discuss
this as time goes on, and now I would like to go to a different
topic.
Some people believe that the FBI historically has had some
difficulty distinguishing between people engaged in peaceful
political dissent and those individuals who for political
purposes engage in violent activity. For example, there are the
Palmer raids, the McCarthy era abuses, COINTELPRO,
neutralization of civil rights, anti-war, and other activists,
investigation of activists opposed to our Nation's Central
America policies, and now, according to some people, the
targeting of Arab Americans.
First, do you share this concern and how will you
distinguish between political dissent activity and criminal
activity when determining whether to initiate or continue
investigations? And then I would like you to also address what
steps you will take as Director to ensure that the Bureau does
not infringe on fundamental First Amendment rights and
restricts itself, of course, to investigating only criminal
activity.
Mr. Mueller. I do share the concern, Senator, and it has
been my practice as a prosecutor, when working closely with the
FBI or any other agencies, to focus on what predication there
is for further investigation. In my own view, the investigative
process is a series of steps that one must go through, always
looking at each of the steps as to whether or not you have got
sufficient reason to go forward to the next step. If there is
an allegation and there are minimal tasks, investigative tasks
can be done to determine, prove or disprove that allegation,
they should be done before you issue a grand jury subpoena.
And, consequently, I would insist that whenever we are
undertaking an investigative enterprise, that there be adequate
predication for the steps we take to pursue that investigation.
One of the things I probably will be discussing at more
length while we are here, and that is the issue of span of
control, and how do you assure, as Director of the FBI, that
such concern, oversight, is being demonstrated at the local
level. And as I mentioned in my statement, I do have concern
about span of control. In an organization as large as the FBI,
you have to have transparency of information all the way to the
top. And there has to be focus on what is a priority, what is
critical, so that those leaders at the top are prioritizing
information they're getting. In order to do that in an
organization as large as the FBI, you have to have the computer
infrastructure. And that is one of the reasons that I will as
soon as possible push hard to get the infrastructure that
enables the information, which is the lifeblood of the FBI, in
a form where it can be transparent to the managers at the local
level and at the national level, so that you are able to look
and assure and provide the oversight necessary that predication
is being looked at, demonstrated, before a particular important
investigation is going forward or a class of investigations is
going forward.
Senator Feingold. Thank you very much and good luck.
Mr. Mueller. Thank you.
Chairman Leahy. Thank you.
Just to bring us up to date where we are, I have been
informed that a number of flights have been delayed this
afternoon of Senators coming back to Washington. What we are
going to do is go to Senator Specter now for his round. I have
discussed this with the Senator from Alabama also. When he is
finished, we will take a short recess to allow everybody a
chance to stretch, if nothing else, and then we will come back
and begin with Senator Sessions.
Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Mr. Mueller, when we met several weeks ago, I commented to
you about this memorandum from Director Freeh to Mr. Esposito
dated December 9, 1996, and a copy has been furnished to you.
And the critical paragraph is paragraph 4 which says as
follows: ``I also advised the Attorney General''--this is a
reference by Director Freeh to a conversation he had with
Attorney General Reno. ``I also advised the Attorney General of
Lee Radick's comment to you that there was a lot of `pressure'
on him and PIS''--the Public Integrity Section--``regarding
this case because the `Attorney General's job might hang in the
balance' (or words to that effect). I stated that those
comments would be enough for me to take him and the Criminal
Division off the case completely.''
This memorandum did not come to the attention of the
Judiciary Committee until a subpoena was served in April 2000
for the LaBella report and any other documents in possession of
the FBI relating to the campaign finance investigation. When I
saw this memorandum, I asked Director Freeh why he did not turn
it over to the oversight committee, and he responded that he
thought it would seriously impair his relationship with the
Attorney General. He declined to testify, and my efforts to get
a subpoena from this committee were unsuccessful.
When Attorney General Reno testified, she said that she
didn't recollect any such conversation, but if such a
conversation had occurred, then she would have done something
about it.
Now, mid-2000 investigation is hardly any way to pursue
oversight on an event which happened in December 1996. Now, if
such a matter were to arise, assuming your confirmation as
Director of the FBI, would you sua sponte on your own make a
disclosure to, say, the chairman and ranking member of the
Senate Judiciary Committee or some other oversight body?
Mr. Mueller. Well, I have had an opportunity to think about
this, what I consider to be a very difficult issue, Senator.
And if I might, let me just state that I understand, firmly
believe in the right and the power of Congress to engage in its
oversight function. It is not only a right, but it is a duty.
And there are occasionally concerns relating to law
enforcement, relating to privacy interests, that are some, as I
say, concern to the Department of Justice and would be to the
FBI.
In responding to oversight, I would be guided by three
principles.
First, I would always try to accommodate the requests of
Congress consistent with law enforcement, my law enforcement
responsibilities, accommodate in a variety of ways, whether it
be through summaries substitutions, redactions, or the like,
and I've had some experience in doing that when I was Assistant
Attorney General in charge of the Criminal Division.
Second, I believe that Congress is entitled to a
straightforward articulation of the reasons why a particular
document could not be given to the oversight committee in its
entirety.
And, last, oversight--or I should put it another way,
accommodation should never be sought to avoid embarrassment or
for any other reason other than a legitimate reason relating to
a valid basis for keeping an item confidential.
Senator Specter. With all due respect, Mr. Mueller, that
doesn't answer my question. I consider this to be ground zero.
If there isn't oversight by the Judiciary Committee on a matter
of this sort, then oversight is meaningless. If you limit
oversight to the chairman and the ranking member, that is a
very limited amount of oversight. Maybe you can limit it just
to the Senate. I wouldn't presume to get involved in your
duties to the House of Representatives. But the chairman and
the ranking member are of sufficient credibility and
reliability as the Director of the FBI or the Attorney General
or Mr. Esposito, to whom this memorandum was addressed. This
document and these factors were in the hands of quite a number
of people in the FBI. And Senator Leahy and Senator Hatch, or
whoever may hold those positions, are people of responsibility
and trust.
Let me add to the mix another factor, but I intend to come
back to it, and I intend to press a flat answer. In February
1997, Director Freeh told me that there was a request by the
President through the National Security Counselor--and I
discussed this matter with you, because these are weighty
matters and I don't think we ought to propound the questions
and expect an answer in the course of a hearing, just something
you haven't had a chance to think about. But as I said to you,
FBI Director Freeh said that the information was not provided
to the President because the President was under a criminal
investigation.
Now, I did not find out at that time what the quality of
the evidence was as to a criminal investigation, nor did I find
out what the national security information was. But had I known
about this memorandum, which identified a top Department of
Justice official, Mr. Lee Radick, saying that there was
pressure on him regarding this case because the Attorney
General's job might hang in the balance, or words to that
effect, in combination with the two, that is a matter which I
would have pressed for disclosure.
Without returning to the first question, Mr. Mueller, do
you think that the Director of the FBI has the authority to
withhold national security information from the President, even
if the President is under a criminal investigation? Considering
the fact that obviously as long as the President is in office,
he is the President and he is the Commander-in-Chief and we
have a constitutional process for changing that which we
undertook 2 years ago, the matter could be reported to the
Speaker of the House of Representatives for possible
impeachment if it rises to the level to conceal the
information, not disclose it, then it comes to the Senate,
there are constitutional provisions. I think it takes a lot of
fortitude, also known as ``guts,'' to not show that information
to the President. And what's your view on that? Is that a
proper exercise of the authority of the Director of the FBI?
Mr. Mueller. Let me take the second question, and then I
will come back to, if I could, the issue----
Senator Specter. OK. They are interrelated, so I wanted
to----
Mr. Mueller. Surely.
Senator Specter [continuing]. Get them both on the table at
the same time.
Mr. Mueller. Again, I think these are exceptionally
difficult issues, amongst the most difficult issues that any
Director has to face. But with regard to the--it's not
necessarily a hypothetical because apparently they are the
facts, but the factual scenario that you painted of national
security information not having been provided to the President
and whether or not as a result of or as a consequence of
required oversight from the Congress, there should have been
some discussion of that with Congress.
The problem--well, let me go back and say there are
circumstances where the FBI is required to do very difficult
investigations of individuals within an administration. Often
it is as a result--has been the result of appointment of an
independent counsel. In the future, it may well be as a result
of the appointment of a special counsel by the Attorney
General. And there may be occasions where information comes to
the attention of the FBI that, as Director, the decision or the
view is that to disclose that information to a target would
hamper or undercut the investigation. And I would expect that
being a component of the Department of Justice, that any
decision as to whether or not that information should be
disclosed to the target would be made in conjunction with the
Attorney General. But the decision may well be that that
information should not be disclosed.
If it is national security information, on the other hand,
that bears upon the security of the United States, I think we
have an obligation to assure that anything within those
materials that bears on the national security finds its place
in the national security structure.
Now, if there is a request from Congress for that
information, then, again, in consultation with the Department
of Justice, we would find a way to accommodate the concerns of
Congress.
Senator Specter. But when you use a hypothetical of a
request from Congress, Congress can't make a request when it
doesn't know anything about it.
Mr. Mueller. Well, what you're asking is whether I would
sua sponte discuss that with Congress, not discuss it with the
Attorney General, and I think it would depend on the
circumstances.
Senator Specter. No, I think you should discuss it with the
Attorney General. But I believe, of course, the facts--well,
you might have a distinction there. It was a rocky road between
the Director of the FBI and the Attorney General. And this all
turned upon the appointment of independent counsel where the
record is full of the fact that Director Freeh wanted
independent counsel and Attorney General Reno resisted, a
matter of long, contentious hearings right here in this room.
Mr. Chairman, may I borrow a little time?
Chairman Leahy. Go ahead.
Senator Specter. So maybe--well, we are backing up
questions--would you not discuss it with the Attorney General?
Mr. Mueller. No. Absolutely, I am a component of the
Attorney General, or not of the Attorney General, a component
of the Department of Justice, and as, I think, Senator--as Mr.
Chairman pointed out at the outset, the Attorney General's the
boss. Absolutely I would discuss it with the Attorney General.
Senator Specter. You are a little more than that, as
Director of the FBI, Mr. Mueller. You have got a 10-year term,
and you cannot be removed except for cause. And in a context of
this sort, it better be a mighty good cause for somebody, the
Attorney General or the President to try to remove you. But the
ultimate decision came down to Director Freeh, as I understand
the facts and I pursued the facts. So the question is, two
questions pending, Mr. Mueller are--well, I will just ask one
at a time under a questioner's rule. Would you, as FBI
Director, exercise the authority to withhold information from
the President on national security matters, because the
President was the subject of a criminal investigation?
Mr. Mueller. There may be an occasion where it's possible,
yes.
Senator Specter. OK. You are the Director of the FBI when
this information comes to you about somebody in the Public
Integrity Section who is opposing the appointment of
Independent Counsel. He is the principal person fighting
appointment of Independent Counsel. The record is replete of
that. Mr. Radick testified before the subcommittee on
Department of Justice oversight, that he did not believe in the
Independent Counsel Statute, was not going to enforce it. And
here he has a conversation with the top FBI official, and the
Director takes it up with the Attorney General, and recounts
Radick's statement about a lot of pressure on him, because the
Attorney General's job might hang in the balance. Are you going
to inform the Judiciary Committee Oversight, at least the
chairman, ranking member, at the time this memo was drafted,
correct?
Mr. Mueller. I'm not certain what I would do in that
circumstance, but I cannot tell you today that I absolutely
would. This relates to conversations between the FBI Director
and the Attorney General. And I also believe, in addition to
the responsibility of the FBI Director to act as a component of
the Department of Justice, there may well be some
confidentiality concerns relating to the conversations between
the FBI Director and the Attorney General. And I would hope
that as a result of a memorandum like this--and I'm not certain
it didn't happen as a result of a memorandum like this, that
some action would be taken. But if action had been taken as a
result of this memorandum, and as a result of the conversations
that Director Freeh had with the Attorney General, I am not
certain that it would be necessary or required to, sua sponte,
on my own, without consultation with the Department of Justice
or the Attorney General, to turn this memorandum over to this
committee, whether it be the chairman or the ranking member.
Senator Specter. Well, Mr. Mueller, no action was taken.
Lee Radick's statement is known. He continued to oppose the
appointment of Independent Counsel. That matter was not brought
to the attention of the Judiciary Committee, and the Attorney
General was reappointed, and there was a very, very contentious
matter which lasted for years, right through the year 2000 in
July, when the subcommittee terminated its investigation. And I
am only giving you my opinion, but I do not believe that that
confidentiality reason has any weight at all. It is not worth
its salt. There is not a confidentiality relationship between
the FBI Director and the Attorney General when it comes to a
matter of this import, about somebody easing off on an
investigation, and that is what oversight is all about. And
very candidly, it is not good enough for me, if I do not have
your assurance, that this is the sort of a thing you will
disclose to the chairman and ranking member.
Chairman Leahy. Did you want to add to that? Because I
think then we are going to take our recess.
I would note for the record, on this, as I recall, Mr.
Radick said he did not recall that conversation having taken
place. I realize the memo speaks is based on hearsay. But to
ask a question about what you might do in the future is
perfectly legitimate. I do not think the hearing here should be
considered to establish exactly what did happen.
But in any event, we will recess for 5 minutes.
Senator Specter. Mr. Chairman, before we recess, Mr. Radick
testified that he recalled pressure, and he recalled the
Attorney General's job hanging in the balance. He did not
recall the connection between the two. And Mr. Esposito and Mr.
Radick sat side-by-side at the witness table, both under oath--
--
Chairman Leahy. In fairness----
Senator Specter [continuing]. And gave contradictory
reports.
Chairman Leahy. In fairness to Mr. Mueller, this is a
hearing on his confirmation, and not a hearing on what Mr.
LaBella, Mr. Radick, Ms. Reno or others might have recalled or
might not have recalled.
In any event, we will stand in recess for 5 minutes.
[Recess from 3:06 p.m. to 3:21 p.m.]
Chairman Leahy. What we will do now, as I said earlier, we
will go to Senator Sessions of Alabama, then we will go to
Senator Edwards of North Carolina, and if other members come,
they will have the opportunity to ask questions. Otherwise, we
will go back to Senator Hatch and myself.
And I appreciate Senator Sessions--has been here right from
the get-go on this--for his patience.
Senator Sessions. Thank you. This is a very important
hearing. We have got a very important nominee and nomination
matter to settle and talk about, and I think it is good we take
some time, and I thank you, Mr. Chairman, for doing that.
Mr. Mueller, with regard to Senator Specter's questions, I
was a participant on the subcommittee with him and heard the
testimony, and I have been a line prosecuting United States
Attorney. My respect for the Attorney General is unbounded. I
know you always, if you have a problem, want to talk to the
Attorney General, if it is a serious problem. But in this case
the allegation was that the Attorney General's own hand-picked
Chief of Public Integrity told a high official in the FBI that
the Attorney General had to go, in effect, soft on this case
because her job might be on the line. And I do not know what
the answer to that is, precisely what you should do, but under
those circumstances, I hope that you will keep your options
open, because you have a 10-year appointment. That is for a
reason, so that if something serious occurs, and there has been
a threat to the orderly operation of justice, that you would
use that independence for a good reason. And I do not know what
the answer would be, but I think you should keep your options
open.
Mr. Mueller. May I respond to that, Senator?
Senator Sessions. Please.
Mr. Mueller. I do not exclude the possibility that the
circumstances would be such that I would feel it necessary to
circumvent the ordinary course of proceedings by--which would
be to go to the Attorney General first before I made perhaps a
disclosure to Congress. But I am not precluding the possibility
that given the necessary independence of the Bureau in
investigation, that there might not come a time where one seeks
an alternative where one believes that political pressure is
being brought to bear on the investigative process. That may be
somewhere else in the Executive, beyond the Attorney General.
It may be Congress, but I would look and explore every option
if I believed that the FBI was being pressured for political
reasons. And if that were the situation as described here, I
would explore other alternatives or a variety of alternatives
in order to make certain that justice was done.
Senator Sessions. Well, we hope that we do not have that
happen again, and I think you answered well.
Let me mention a couple of things that are important to me.
Senator Feingold asked about the 16th Street church bombing
case in Birmingham, where tapes were not produced to Former
Alabama Attorney General Bill Baxley years ago, when he did the
first prosecution of the case. And something I have written the
FBI about. I would like to know how it was that decision
occurred and why those tapes were only produced recently. And
to date, the answers we have gotten, I believe, are not
satisfactory.
Will you look at that and give it a fresh look, and make
sure that we have the information we need? And one of the
things that I think Senator Grassley is raising in his use of
the words ``arrogance'' and ``defensiveness'' is that sometimes
you need to admit your error if there was an error. And I think
it would be healthy to review that in a fresh way, and if an
error was made, I would like to see you say an error was made.
Would you do that?
Mr. Mueller. Absolutely, Senator.
Senator Sessions. Another matter that has come to my
attention in recent months is that the FBI is building a new
office in Birmingham, or wants to do that. The city of
Birmingham has a redevelopment project. They have a piece of
property that they want the FBI to build on for $800,000, but
the FBI seems determined to go to a higher-rent district with a
$5.5 million real estate purchase. I have questioned that. Will
you look at that?
Mr. Mueller. I will.
Senator Sessions. In fact, I will just, for my two cents
worth, add here that I think 4.5 or more million dollars is a
lot of money. I am not sure that all the millions being spent
on high level security for the FBI buildings is justified. I do
not know why a terrorist would want to bomb the FBI Building
more than they would the Mayor's office in Birmingham, or the
Senator's home that can be found in Alabama. So I just think we
need to look at that. There is a lot of money going into
setbacks and underground garages and all of this stuff, that to
me, is hitting the taxpayers awfully hard. You may be able to
save a lot of money for a lot of the things you need to be
doing from the building budget if you will look at it.
Mr. Mueller. I will.
Senator Sessions. Senator Feingold asked you about the
coordination partnership between the United States Attorney and
the FBI agents in working a case toward prosecution. I believe
that cases go best when FBI and prosecutors work together
handily. There seems to be some view that the FBI does the
investigation and takes it fully complete to the U.S. Attorney.
You have been the prosecutor for a long time. What is your view
of the proper role and partnership between the investigative
agents and the prosecutors?
Mr. Mueller. As you mentioned, it's partnership, and the
best cases are made with the FBI agents working closely with
the Assistant United States Attorneys from the outset of the
case, and it did not use to be the case 10, 15, 20 years ago,
but it's much more the case today. That's exactly the way it
should be done, and ideally, if it is a case that cuts across
jurisdictional lines, you have the FBI working with other
Federal or local law enforcement officers from the outset with
the Assistant United States Attorney.
Senator Sessions. And with regard to your comments about
the fact that everybody makes errors in a case, I think that
was a good observation. Young FBI agents working their hearts
out, are going to make some errors in some cases that they work
on. There was this fear in years past that careers could be
ruined if there were ever an error made. And I remember my
Chief Assistant United States Attorney, and a great prosecutor,
Ruddy Farb, would always tell the agent, ``Son, if you've got a
problem, you come to me, and we'll tell the truth. And I'm not
going to let them do anything to you over there.'' Because
there was a concern that if they made an error, that somebody
in the hierarchy would be too hard on them, for an honest
error. Do you think sometimes that is a factor in the lack of
willingness to come forward with and admit an error?
Mr. Mueller. Yes. I do think that's a factor, and the
bedrock principle ought to be to tell the truth.
Senator Sessions. The sooner the better.
Mr. Mueller. Sooner the better.
Senator Sessions. As you said earlier. I started a task
force dealing with bankruptcy fraud cases. Bankruptcy is a
Federal Court matter. The Senate is moving forward on
bankruptcy legislation now. Many people file false forms or
they lie under oath, and they cheat legitimate creditors and
hide money for themselves that should be going off to pay
legitimate debts.
Will you look at making that a national priority? This is a
Federal Court matter. The integrity of Federal Court is an FBI
function of the highest order I think, and I think those cases
should not be treated as some sort of little commercial
dispute. Many of them are blatant fraud.
Mr. Mueller. I--I will do so. I will tell you that in our
district, we've got a--a close relationship with the Bankruptcy
Court judges, and we take bankruptcy fraud seriously, and we
try to do a number of them at the same time, so that the word
goes out that you cannot lie, cheat or steal in Bankruptcy
Court, for purposes of deterrence.
Senator Sessions. Absolutely correct. And I appreciate you
saying that, and bankruptcy provides tremendous benefits for
those who file bankruptcy. We simply ask them to tell the truth
and not to cheat people by filing bankruptcy.
I know you have been involved over the years in public
corruption, and you mentioned the rule of law. I am convinced
that the American justice and legal system is one of the great
engines of our progress, one of the great protectors of our
liberty, that everybody has an equal right to bid on a
contract. The low bidder should get it if they qualify. That
people should not have to pay bribes or pay off politicians to
get work and that sort of thing.
As a practical matter, it is my observation that it is
extremely difficult for a state prosecutor or a state police
officer to investigate a judge, or the mayor, or the state
senator, or whoever. Do you feel that public corruption
prosecution should be a high priority of the FBI?
Mr. Mueller. It is, and it should be, always. Regardless of
technological advances and the like, the FBI's role in
addressing public corruption, as well as civil rights, for
instance, it's critically important and should always be a top
priority.
Senator Sessions. Well, in my tenure as United States
Attorney, judges, mayors, county commissioners, all kinds of
public officials were investigated almost exclusively by the
FBI and prosecuted by our office. And I think there is a higher
level of integrity today in the Southern District of Alabama
than there was before that started. It has been a good thing
for that district.
And one more question. You mentioned priorities. I remember
when, under President Reagan and under, really, the driving
leadership of Rudy Giuliani as Associate Attorney General, law
enforcement coordinating committees were set up in each United
States Attorney's district, and each one of those met with the
top law enforcement officials there, and they studied the law
enforcement problems in that district, and they made priorities
for law enforcement in those districts. Local priorities did
not always agree with the top priorities in Washington of the
FBI. There was very little if any La Cosa Nostra in the
Southern District of Alabama. And that was a top priority of
the FBI.
Will you respect and give credit to FBI agents and
supervisors who participate in the priorities of their
district, even if they do not necessarily fit in with the top
priorities in Washington?
Mr. Mueller. I think that's always a problem with U.S.
Attorneys who are in a particular district. Mine, the Northern
District of California, is 3,000 miles away from the Department
of Justice, but the Department of Justice and Headquarters have
certain priorities. It's important to meld the priorities of
the Department with the priorities of the particular district,
both for the assistant--not the assistant--but for the United
States Attorneys, as well as for the FBI.
And one of the things I would like to look at, should I be
confirmed, is the setting of priorities and the allocation of
manpower to address those particular priorities. I understand
they're known as stovepipes. And often--not often--but
occasionally, the allocation of priorities and stovepiping of
personnel can detract from the effectiveness in law--of law
enforcement in a particular district. And consequently, one of
the things I would like to look at is how we can better
incorporate the priorities in a particular district with the
national priorities of the FBI, understanding that that was a
problem as a United States Attorney.
Senator Sessions. It is a constant problem, as you know,
and I think maybe one of your top four priorities ought to be
local priorities, and something like that so that we do not
have your agents in the FBI not getting proper respect, credit
and recognition for cases just because they are not in the top
national priority.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Sessions, and again, I
appreciate you for standing by for the time to do that.
Senator Edwards.
Senator Edwards. Thank you very much. Good afternoon, Mr.
Mueller, and welcome. I am pleased to have you here today. I
have read an awful lot about you over the course of the last
few weeks, and have been very impressed with what I have seen.
As my colleagues have talked about, I do not think we would
ever want to understate the extraordinary achievements of the
FBI over its history. But there are very serious problems, some
of which I know have been discussed at length before I got here
this afternoon, the Robert Hanssen spy case, the failure to
turn over documents in the Timothy McVeigh care, the problems
with laptop computers and weapons, cataloging those, keeping
track of them. And I think these are very, very serious
problems for an agency that we consider the top law enforcement
agency in the world. And I think they are unacceptable. I hope
you view them as unacceptable also.
But I have great faith, based on what I have seen and
heard, in your ability to go in and change the situation and
help restore the reputation, the integrity of the FBI.
I have something, a very specific area I want to ask you
some questions about today, which is the area of terrorism and
counterterrorism specifically, something I have great interest
in.
I have become convinced that terrorism presents the most
serious security threat to our country over the course of the
next decade. And while we have done a lot of good work in this
area, there is still a lot of good work to be done to make sure
our national security is protected against terrorism. And I
have been actually, specifically, working on a set of proposals
that address what I see as the issues raised by terrorism and
the appropriate responses.
There are three areas that I would like to talk to you
about this afternoon if I can. First is the issue of agency
coordination. As I know you are aware, there are a number of
Federal agencies that are involved in the issue of terrorism,
but the FBI has a very important role in coordinating not only
between the various Federal agencies, but also with state
agencies and local officials. And one of the criticisms that
has been raised by some in the administration, is the failure
to effectively coordinate these efforts. I personally think
some of that criticism has probably been overstated, but I
think it is a serious question. I think the responsibility of
the FBI to coordinate these activities is very, very important.
And I am going to ask you to comment on that in just a moment
if I can, but let me just mention the other two areas.
The second area which I think is also very important to our
national security is the area of computer security and the
threat of cyber terrorism. You know, one of the things that has
happened over time is we have become increasingly reliant on
technology to provide vital services in our community, you
know, whether it is wastewater treatment plants or provision of
power, electricity, emergency services. I mean there is a lot
of good things that come from the use of technology. But
unfortunately, it also creates the opportunity for a terrorist
attack and a disabling, potentially, terrorist attack. I mean,
a terrorist attack could cutoff power, major power supplies in
some of the metropolitan areas of this country.
As I know you are aware, the NIPC, the National
Infrastructure Protection Center, is located at the FBI, within
the Counterterrorism Division, and it is its mission to detect,
warn against and investigate potential threats to our critical
infrastructures. Some have complained that since it is
physically located there, although it is supposed to be an
interagency operation, that the FBI has dominated it. I would
comment just in passing that I think it is very important, as I
discussed just a minute ago, in terms of having coordination
between the agencies. It is also very important that that vital
Center be well coordinated between the various Federal
agencies.
And the third area is border security. In my State of North
Carolina, along with a lot of other states, we face the unique
challenge of trying to protect our seaports against the
possibility of terrorism. And the FBI has a Joint Terrorism
Task Force. They cooperate with Federal, state and local
agencies. They work together to keep borders and seaports safe.
The role of these task forces, from what I have seen, is
actually fairly loosely defined, but I think it is very
important that we do everything in our power and that the FBI
fulfill its critical responsibility in the area of protecting
our borders and protecting our seaports.
So those are the thing I am concerned about. We all know
how critical the FBI is to our counterterrorism activity. These
three specific areas are things that I am interested in and
concerned about, but if you would, I would love to have your
comments about them.
Mr. Mueller. I share your belief that the major threat that
we have, and the threat that the Bureau needs to worry about
most is terrorism, certainly in the foreseeable future.
The first point, agency coordination, the improvements that
have been in the last 5, 6, 8 years in the relationship between
the FBI and CIA, I think is absolutely critically important in
terms of addressing the threat of terrorism, because unlike
many of the crimes we face, it has a national as well as an
international dimension. And when you--the FBI generally has
jurisdiction of the border except in some unique circumstances
where there's a terrorist attack and Americans are killed, but
after that it's the CIA. And it's critically important that the
decisionmakers in the United States have the benefit of the
expertise of both agencies in a coordinated fashion. And I
think there have been tremendous improvements there, and that
is a foundation that I think we have to buildupon.
Likewise, the other agencies that have a role in
counterterrorism we have to develop on the local level as well
as on perhaps the state level and national level, the team
concept of addressing terrorism, because often the intelligence
will be at the local level. Some of the other intelligence will
be at the state or the national level. And it's critically
important that they be put together so that we have a view of
the puzzle.
And so I will be supportive of the FBI participating in the
local terrorist task forces. I think they have had tremendous
successes. The one in New York has had successes over a number
of years, and I think that's the way to do it.
Let me speak for a second about the cyber crime threat or
the cyber threat to the United States. I have heard what you
just alluded to, is that NIPC is perceived by some as not being
as open to all of the participants as it should be. In order
for any joint intelligence or law enforcement enterprise to
work, there has to be a feeling of equality and total
participation of each of the persons that are a participant in
that task force. And to the extent that there is a perception
that there is less than that in NIPC, then that is something
that I would want to address.
It may be attributable to the fact of the location at the
FBI. It may be attributable to the number of people. It may be
attributable to leadership, but there are things that one can
do to convince all of the participants that they are equal
participants and have equal benefit out of that enterprise. And
I would hope to be able to accomplish that.
Senator Edwards. And the third area was border and seaport
security.
Mr. Mueller. I had taken that in the context of the Joint
Terrorism Task Forces on the local level. Often the Joint
Terrorism Task Force has not only the FBI, but the local
police, as well as Customs, perhaps Coast Guard participating,
and in fact, INS in certain areas. And consequently, the FBI
has to work with others, others whose responsibilities may be
more primarily based on assuring the security of our borders,
such as the Immigration or the Customs Service, or even the
Coast Guard, where the FBI may take a lesser role, but it's
still critically important for the FBI to play a role in that
context.
Senator Edwards. Well, let me tell you, it is very
encouraging to hear you say that you recognize what an
extraordinary threat it is to our national security, this
threat of terrorism. And that, obviously, the FBI plays a very,
very important role in protecting our national security in that
regard. And the fact that you are focused on it, and you
consider it critical, I find very encouraging, and I look
forward to working with you. Thank you, Mr. Mueller.
Chairman Leahy. Thank you, Senator Edwards.
And we have been joined by Senator Schumer, who will go
next. I understand Senator Schumer may have been welcoming a
new constituent to the city.
Senator Schumer. I was indeed, Mr. Chairman. It was a
great--it was a great moment. He has kept his touch, and they
had 20 saxophonists on stage playing ``Stand by Me.'' It was a
great time.
Chairman Leahy. And he found a parking space? I always
understood it was a difficult thing in New York City.
Senator Schumer. My wife is the traffic commissioner, so I
will try to put in a good word, appointed, I would remind my
Republican colleagues, by Mayor Giuliani. Back when she was
appointed she said, ``I would like to thank the Mayor for
showing faith in me and my abilities despite the baggage I
carry.''
[Laughter.]
Senator Schumer. And I was truly baggage. Anyway, thank
you, Mr. Chairman, and I want to thank you for holding this
hearing and just for your general--I mean, I think our
committee has had a great start, not to denigrate the time that
we had under our previous chairman, but it is off to a great
start under your leadership. We are really doing many, many
things in many different areas, and I think we all thank you
for that.
I would like to thank Mr. Mueller for being here and for
his time.
Mr. Chairman, I have made no secret about the sort of
person I think we need now at the FBI, and that is someone
devoted to both the rule of law and being an outstanding
manager. If Richard Jewell and Wen Ho Lee raised questions
about the management of investigations, the McVeigh documents
and the Hanssen affair raised questions about the management of
internal information. And now we even have questions about
whether the Bureau can manage its own guns and its computers.
The common thread here is management, which is why I
believe we need a person with administrative experience and the
willingness to take on sacred cows. I have great confidence
that Bob Mueller is that person. I believe that the FBI's
employees are top notch, as top notch as they have ever been,
but an Agency that has had to expand its field of endeavor very
quickly, I heard as I walked in, my colleague, Senator Edwards
talking about terrorism, something the FBI did not really have
as a major item of its agenda, counterterrorism, until the
early 1990's, and as it has grown larger, it has not been
managed as well as it might.
And so I applaud Mr. Mueller's selection, somebody who
knows the Agency, who is a no-nonsense prosecutor, who seems
to, in his career, been apart from any political
considerations. I think Mr. Mueller is just what the doctor
ordered. And I think, at the same time, he will reinforce the
strength of the personnel, and buck them up, and keep them
solid and keep them strong. And so I think it is an excellent
choice, and I applaud the President for choosing Mr. Mueller.
But while I applaud the selection, I think it is only the
beginning of what we need to do to change the FBI, not the end.
While Bob takes the reigns and begins to grapple with the day-
to-day reality of running the Bureau. Senator Hatch and I, and
I know my colleague has talked about this a little bit, but we
believe that the FBI could also benefit from a more global and
thoughtful review by outside independent law enforcement
experts. Bob will be in the midst of the trees, and somebody
else may have to be looking at the forest, a view from the
outside, a view from the top.
We have introduced the FBI Reform Commission Act, which
will set up a blue-ribbon commission to thoroughly examine all
aspects of the FBI's operation, structure, information
management, oversight, training and culture. The commission
will then recommend systematic reforms for consideration by
Congress and the Bureau. Our proposal is beginning to gain
cosponsors. It is obviously bipartisan, sponsored by two people
who care a lot about this agency, and I hope that we can take
it and other bills on the subject up soon. This is not an
examination of one particular mistake or a series of mistakes.
It is, rather, a top-to-bottom overview of where the FBI has
been, what it ought to be, and where it ought to go.
In the meantime, Mr. Chairman, while we hopefully wait for
that type of commission if our law passes to come up with its
recommendations, turning over the keys to Bob Mueller is a
great start, as I mentioned. Anyone who has the support of both
Senator Boxer and Attorney General Ashcroft has to be doing
something right.
I have known Mr. Mueller for many years. When I chaired the
Crime Subcommittee in the House, Bob was head of the Criminal
Division in the DOJ. We worked well together on part of the
BCCI case and a variety of other matters. I admire his heroism
as a decorated Marine, his stellar career as a front-line
prosecutor of everyone from the Hell's Angels to East German
spies, but at this particular moment it is even more important
that Mr. Mueller has significant management experience, more
than any of his predecessors. He has run a variety of different
offices, large and small, in the Agency, oversaw the
investigations and prosecutions of Manuel Noriega, John Gotti,
Pan Am Flight 103 and BCCI.
So I think he is a great choice, and to boot, I guess we
can claim you as a New Yorker. I do not know if you have spent
more of your years there than in any other State----
Mr. Mueller. A couple of days, actually.
[Laughter.]
Senator Schumer. A couple of days. But we will take
credit----
Chairman Leahy. He is going to vote for you anyway, so do
not----
[Laughter.]
Senator Schumer. Mr. Mueller has been called shy, low key,
and someone who shuns the limelight, but at the same time tough
as nails and no nonsense. For an agency in desperate need of
results, not just headlines, that is exactly the right mix.
Let me conclude by restating my view as somebody who has
supported the FBI throughout my career that the FBI may be a
little bit down, but certainly not out. We expect it to come
roaring back. It is an agency, as I said--I said it before, but
I would repeat it--it seems its parts are greater than its sum
right now. The individuals are just terrific. Somehow, when you
put it all together, it does not quite work as well in many
areas as it might, but I am confident, under Mr. Mueller's
leadership, it will be. It is still the gold standard in law
enforcement, and with only rare exceptions, as I said, its
11,000 agents are as dedicated, trustworthy, and effective as
ever. I believe the FBI will turn the corner.
With that, Mr. Chairman, I want to thank you for allowing
those of us who could not be here exactly on time to make
opening statements. I will ask a few questions, if I have a
little time left. I take it we are getting 10 minutes now.
Chairman Leahy. Yes.
Senator Schumer. Great. Thanks.
As I have discussed in my opening statement, Senator Hatch
and I have introduced a bill that would set up this independent
blue-ribbon commission to take a top-to-bottom look at the FBI
and examine global issues, like structure, information
management, oversight, training, culture. We think this kind of
broad view would be helpful to you as you get started because
you are going to have to bear down on the day-to-day job of
running the Bureau, while the commission will have the luxury
of focusing on the broader institutional and cultural issues
that may have given rise to recent problems.
This commission is intended as a friend of the Agency, not
as an adversary. What I would like you to do is comment on our
bill and tell us what you think a commission like this should
focus on.
Mr. Mueller. Senator, I must say at the outset that it is
the administration that determines whether there is support for
a particular bill. I can also say at the outset that I have
reached out, and will continue to reach out, to--not just
persons in the Bureau, but persons who have been in the Bureau
previously, but also persons in large corporations, CEOs, who
have run successful corporations to try to identify those
management structures that worked well and would work best at
the FBI. I, also, am looking forward to receiving the report of
the consultant firm that is charged with looking at the FBI
from top to bottom.
All of that being said, however, I would welcome the
insight from any other individuals, assuming it is a
combination of individuals with experience in management and
private industry, law enforcement, and other walks of life to,
again, look at the Bureau and give me advice and other top
management, advice as to how the Bureau should be improved.
Senator Schumer. Thank you. Thank you, Mr. Mueller, and
hopefully we will give you that type of commission, and that is
the kind of open-minded approach that I think we need.
Let me turn to another area, something that has recently
happened in the Justice Department that has troubled me
greatly. Attorney General Ashcroft recently announced a major
policy change with regards to records of gun sales known as
NICS, the NICS audit logs, and these records are needed to
investigate battle-apple firearm dealers intent on putting guns
in the hands of anyone who will pay, including convicted
felons, the mentally ill, people who commit domestic violence.
The records are also essential. There is virtually no other
way to catch a straw buyer, somebody who pays someone else who
doesn't have a record to go buy the guns for them. Until now,
these records were maintained for 6 months. The Attorney
General decided they should be destroyed almost immediately
within 24 hours. A, there appears to be no good reason for this
change in policy. I do not know anybody who has shown any abuse
of the system.
And, second, when we came out with this report a couple of
years ago that 1 percent of the dealers put 50 percent of the
guns used in crimes into circulation, I thought it was a major
breakthrough because the people I had opposed on the gun
control issue had always said enforcement should be No. 1. We
do not need more laws, we need enforcement. And here was
something that almost vindicated them. It did not say every gun
dealer was bad. It did not say most of them were bad. It said
there were a small number of bad apples, and if you went after
them, you could prevent bad people from getting guns and allow
law-abiding citizens who wanted to continue to have guns to
have them, a policy that I have always supported.
And now all of a sudden we are just destroying the ability
to go after those bad dealers. And the kind of grand compromise
that I was hopeful that this Justice Department, and this
President, and this Attorney General could put together seems
to be going out the window because there is a group of
idealogues who are against all records, even though we hold IRS
records for a very long time, we hold just about every other
record for a very long time.
So I realize you have not been present for the discussions
on this policy shift, but several well-placed sources have
informed me that the FBI opposed the Attorney General's
decision to destroy these records so quickly and that
opposition was generated out of a simple concern that
destroying NICS records will handcuff law enforcement.
Are you aware, at all, in your stint as an adviser to the
Attorney General, about the FBI's position on this? I realize
they would not take an official position, but an informal
position or informal positions that others in the Justice
Department may have taken?
Mr. Mueller. No, I am not aware. The positions have not
been part of the policy. I do have some concern I will tell you
about one thing that you have said, and that is that sources
have told you sort of outside the mainstream as to what
somebody in the Bureau thought. That bothers me, I will tell
you, because--and I will tell you some of the reasons why it
bothers me.
I do believe that there's a difference between a policy
debate and the basic investigative work of the FBI. And the
basic investigative work of the FBI, in my mind, should be
objective, it should be without any political influence, and
without--and in order to have credibility, cannot be seen as
favoring one side or the other.
Senator Schumer. Right.
Mr. Mueller. On the policy side, I do believe that the
President and the Attorney General have the right to make
policy. They can ask the FBI for input into that policy, but I
have some concern about the FBI being made a political football
in a policy dispute because I do think it may well undercut the
credibility of the Bureau when it comes to needing the
credibility of the American people to believe that the FBI
investigates facts objectively and without any political
influence.
Senator Schumer. Yes. No, I certainly agree with you that
there is a great difference between the ability to investigate
and the ability to make policy. But on a policy as important as
this, this is not just solely the responsibility of the
executive branch, and that type of information would be very
useful to my colleagues here. We have been trying, at least I
have, and I think there are others who disagree with me, to
bridge this gap we have had on guns. This was an important way
to maybe do it.
And so the fact that the President made a decision, I
respect that, but I do think it is perfectly within the
prerogatives of those of us on this side of Pennsylvania Avenue
to know all of the policy recommendations, pro and con. This is
not an issue of national security. It is a policy debate. If
anything, the security of people may end up on the other side.
So I don't have a problem with that.
We requested the documents, Senator Kennedy and I, another
member of the committee--I do not know if he has been here
today--from Department of Justice and FBI last week. Do you see
anything wrong with us being given those documents?
Mr. Mueller. I am not familiar with the request or the
documents, but I do believe that the Bureau should do
everything possible to accommodate the requests of Congress. If
there are documents that relate to the policy, that are
generated by the FBI, then I believe the Department of Justice
and the FBI should do everything possible to accommodate the
request of Congress, consistent with its law enforcement
responsibilities.
Senator Schumer. Well, I hope we can work together on this
issue, and I hope maybe that--you cannot publicly do that, but
you can quietly be a voice within the FBI and within the
Justice Department to prevent a decision like this from taking
effect. If not, we are going to try to legislatively deal with
it.
I do want to ask your judgment, not on the specific issue,
but generally, as somebody who has had such a depth of
experience, which is one of the reasons many of us here are so
fond of the choice of you as director, does it not make sense
that destroying these records quickly could--I am not saying
will--but could subvert the FBI's effort to keep guns out of
the hands of criminals and go after the bad dealers?
Mr. Mueller. It could. I am not familiar with the debate or
what evidence there is, what study there has been of the impact
of the change, but, yes, it could.
Senator Schumer. Thank you. I appreciate your candor there.
Let me go on to another subject, if my time has not yet
expired.
An issue that is of great concern to me is those--I am pro-
choice, as you know. I passed a law in the House. It passed
here in the Senate called the FACE Act, which I did not regard
as pro-choice or pro-life. I regard it as pro-law. That people
who believe they had a message from God that was different than
the message that others of us have received should not take the
law into their own hands, blockade clinics, protest, yes;
blockade, no, and of course not threaten doctors, et cetera.
Can you commit, and I asked the same question of Attorney
General Ashcroft, when we were examining his nomination, can
you commit to keeping the same level of intensity and funding
of personnel when it comes to investigating the kinds of crimes
of violence, threat of violence at these pro-choice clinics,
these family planning clinics as was maintained under your
predecessor? I do not even know what Director Freeh's views
were on choice, but I know he was committed to doing this, and
did.
Mr. Mueller. Yes, I am committed to enforcing all of the
laws and allocating the manpower to do it in critical
situations.
Senator Schumer. Thank you.
My time has expired. I thank the chairman for his
generosity.
Chairman Leahy. Thank you.
Mr. Mueller, so that people can plan, of course, we will
stop if questions stop, but otherwise we will recess at 5
o'clock because we will have votes this afternoon. I know some
Senators want to go to the floor prior to the vote. Some of the
FBI's problems could be part of management structure has become
too unwieldy. I am trying to think back when you gave your
opening statement, you sort of spoke about management being
possibly out of control or spun out of control I believe were
your words.
We have the former New York police commissioner and then
Customs Commissioner Ray Kelly testify at our hearings that a
regional structure can make a large law enforcement
organization more manageable--they can be reporting to regions
rather than everybody reporting to headquarters--and probably
provide more effective oversight of field operations than
simply having a periodic multi-year review.
Well, and I do not expect you to tell us that if you are
sworn in next week how you are going to totally reorganize the
FBI, but is this something that would be considered?
Mr. Mueller. Absolutely. I did read Commissioner Kelly's
testimony with some interest, and I know he suggested that you
have a regional structure with a West Coast, I believe, Mid-
America and East Coast some form or regional structure. As I
did indicate in my opening statement, the span of control is a
substantial issue.
I would look at that proposal with a view to whether it
goes toward affording appropriate span of control. But on the
one hand, I do not want to put in place yet another level of
bureaucracy. So I would look at it, consider it, and see
whether that is what we need to assure effective span of
control.
One of the contributing factors to ability to manage is to
have the software and the information immediately accessible to
you, and I would hope to have the technological infrastructure
be such that I would be able to review, as would the
intermediate managers, review the work on critical cases or
critical classes of cases by turning on your computer and using
the mouse to click on a series of cases to see what has been
done the last 3 days, what you expect to be done in the next 30
days.
When you are talking about span of control, it is a
combination of putting in place, in my mind, a management
structure, but also having the tools that give you transparency
all the way down to the field level.
Chairman Leahy. I think that probably the most notable case
on this, and this actually goes to everything from the level of
control, but also what the equipment and computers are for
document retrieval. Of course, it would be the Timothy McVeigh
case, something you and I have already discussed. But here is a
case of a horrendous crime, I would say one of the most serious
crimes that I can remember in my lifetime here in the United
States. Anybody watching that trial realizes there is no
question of McVeigh's guilt. He ultimately confessed to having
done this.
The FBI did a magnificent job of pulling together pieces of
this, that, and the other thing. It sort of made me think some
of the reconstruction they did, something you are very familiar
with, the Pan Am 103, finding even the tiniest of things, and
doing something that only an organization like the FBI could
do.
But then we had this situation where the director of the
FBI sent a very clear order, and I believe followup orders,
that all materials were supposed to be turned over to the
prosecution. Director Freeh did the absolute right thing in
doing that. Whether people liked the discovery order or not, it
had been agreed to and there we were. But yet, just before the
execution, it was found that this ordered was not followed out,
putting Attorney General Ashcroft in a very difficult position.
He had no question about Mr. McVeigh's guilt, nor do I, but he
had to hold off the execution for a month, and I think
justifiably, to restore credibility to the system.
Now, you were involved in that, and you and I have
discussed this involvement. The weekend press raised a question
whether you had responded quickly or not. I am certainly
satisfied with the response that you gave me in our meetings,
but I just wonder if you might want to go into that.
What were the problems that you saw in getting the order
carried out, No. 1; and, second, how did you determine the time
line of when to notify the Attorney General?
Mr. Mueller. As to the contributing factors to that, I
think there are two: One is the lack of an infrastructure to
have all documents coded and readily available to be produced
with--in that particular case. And there was a huge volume of
documents spread around any number of offices in this country
and internationally, and certainly if we had had the computer
capability, it would have been much easier to assure that we
had all of the documents.
A second aspect of it, I believe, was accountability. And
one of the issues that I think I do see is overlapping areas of
responsibility in various areas of the FBI. And when you have
overlapping areas of responsibility, it is very difficult to
have accountability. And I believe, in that instance, we saw
perhaps a failure of accountability down to the lowest levels.
And one of the issues that I do wish to address is to
ascertain where there are those overlapping areas of
responsibility. It has been my practice in the past to identify
areas of responsibility, put somebody in charge of that area of
responsibility and hold that individual accountable for
discharging that responsibility. And I want to make certain
that where that is done within the Bureau, there is clear
accountability.
Turning to the issue of the time line, upon hearing about
the issue, I heard about it I believe on a Wednesday afternoon.
On that Friday, the decision was made to put over the execution
of Mr. McVeigh. When I heard about it on a Wednesday afternoon,
the initial response, and I believe I talked to the prosecutor
that night or the following morning, the initial thrust of what
I was concerned about is to make certain that defense counsel
were aware of this immediately so that defense counsel could
make its or their own interpretation of whether these documents
contained any Brady or exculpatory information. It was the
belief of the agents and the prosecutors that there was no
exculpatory information there, but I did believe that it was
important that the defense counsel have adequate opportunity to
see it and wanted to make certain that they were given the
opportunity. And as soon as any document was retrieved
thereafter, it was turned over to defense counsel.
I was not aware, I don't believe, at the outset the extent
of the commitment to turn over documents until the following
morning. And I actually had brief discussions with Mr.
Ashcroft's staff on Wednesday afternoon, I think it was, about
it, but I did not have an opportunity to fully brief the
Attorney General until the following day, at which point I did
have an opportunity to brief him more expansively than the fact
that I had mentioned previously to his staff, that there was an
issue. And, thereafter, the discussions ensued as to what was
the appropriate response we would take to the fact that these
documents had come to our attention.
Chairman Leahy. My last question, and then I yield to
Senator Hatch: I remember as a young prosecutor going to a
briefing by the FBI. They had come to Vermont to brief a number
of prosecutors and others in law enforcement, and seeing this
great chart, organizational chart, they had, which had then-
Director Hoover, and with a line down to the President, and a
line down to the Attorney General, and I guess to the rest of
the Government. It was the first time I heard the expression
``SOG'' or Seat of Government, which was not Washington, but
was wherever the FBI headquarters were at that time.
I then recollect later on, when I was vice president of the
National District Attorneys' Association, going with the
president of the NDAA and a former president to meet with Mr.
Hoover, and subsequently with Attorney General Mitchell that
day, and seeing a number of editorial cartoons in the
director's office, most of them very critical of past Attorneys
General, all praising Mr. Hoover, and excoriating past
Attorneys General and Presidents, with the exception of Mr.
Mitchell, who was currently Attorney General, but probably
would get his turn eventually.
It made a lasting impression. I will not go into other
aspects of that meeting, but it was obvious, of course, the FBI
director and the Attorney General have not always had a close
relationship, and that has occurred even more recently.
How do you see your relationship with the Attorney General,
not only the current Attorney General, but as I think Senator
Specter and others have pointed out, you have a 10-year term,
with subsequent Attorneys General?
Mr. Mueller. This is the most difficult issue I think that
a director of the FBI has to address, in that the FBI has its
ultimate responsibility to the American people to be
independent, to pursue its investigations without any favor to
one political party or the other or to any particular
individual, no matter how powerful that individual should be.
And on a day-to-day basis, on the other hand, I do believe
that, absent extraordinary circumstances, the director of the
FBI, and the FBI, is a component of the Attorney General--or
not the Attorney General--of the Department of Justice,
reporting to the Attorney General. And there should be a close
relationship on, for instance, policy matters, there should be
a--there is a reporting structure, and there is a requirement
in almost every matter that the Attorney General be apprised of
that. And, again, I report, in essence, to the Attorney General
and then to the President.
There may be circumstances--there have been in history--
where it is important for the FBI and the Director of the FBI
to put the people above that reporting structure and the
interests of the people above that reporting structure. And I
hope that I do not have occasion to meet such a situation, but
there is the possibility, perhaps even the probability, that I
will.
If there is an occasion where I believe that for reasons of
political influence or the influence of the powerful that the
Bureau is asked to do something that is inappropriate, wrong
under the Constitution, that under those circumstances I have
an obligation to find a way to address that. It may be going
elsewhere in the administration. It may be going to Congress.
It may be going to the American people. I don't know what the
exact answer is. But I hope I do not have to face that
situation because it will be the hardest decision that I,
should I be confirmed as Director, would have to make.
Chairman Leahy. Your answer may be a model answer for all
your successes. I appreciate the answer.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman. I think I will
reserve my time and go to Senator Specter.
Chairman Leahy. Senator Specter?
Senator Specter. Thank you, Mr. Chairman.
Mr. Mueller, there have been many, many requests made to
the FBI and a long litany of letters. Let me summarize them
with just one which I wrote to Director Freeh on November 30,
1999, when I chaired the subcommittee on Department of Justice
oversight. ``I am very much concerned about the repetitive
problem that the FBI fails to produce records that are then
discovered at a much later date. I know you will recall the
incident in September 1997 when the CIA advised the
Governmental Affairs Committee of certain information in FBI
files concerning foreign contributions which the FBI had not
disclosed. There was a hearing in the Intelligence Committee
where a lot of chairs were broken over that. A Senator had made
a request for information from the FBI. The FBI had not
disclosed it. And then the CIA found in its files the
information which they had gotten from the FBI that the FBI
didn't know that it had. I would like you to take a look at
that specific instance.''
Then the letter goes on. By letter dated November 24, 1999,
I wrote asking for an explanation about the failure of the FBI
to turn over records pursuant to subpoenas in the Ruby Ridge
hearings. ``With respect to Waco, there has been a series of
belated disclosures. Last August, it was disclosed that
incendiaries had been fired at the compound contrary to
Attorney General Janet Reno's previous testimony. Shortly
thereafter, the FBI discovered extensive documents in Quantico
which had not been previously disclosed. A few days ago, the
press reported another incident where the FBI found documents
long after they were supposed to have been produced, some 4
days after the Department of Justice attorneys had advised a
Federal judge in Waco that there were no such records. The
Department of Justice has recently advised that Attorney
General Reno's testimony before the Judiciary Committee on June
8th was incomplete because she did not have access to certain
FBI records. Similarly, Mr. Neil Gallagher has sought to
correct his testimony before the Governmental Affairs Committee
on June 9, 1999, because he was not aware of certain FBI
documents when he testified. On the eve of our Judiciary
Subcommittee hearing on Wen Ho Lee on November 3, 1999, we were
given important documents at the last minute, which had been in
the FBI files since November 19, 1997, and December 10, 1999.''
I would ask unanimous consent that the full text of the
letter be put in the record.
Chairman Leahy. Without objection.
Senator Specter. And the full text of the letter of January
3rd to Director Freeh from me be put in the record.
Chairman Leahy. Without objection.
Senator Specter. Along with the memo of December 9, 1996,
which I asked you about before, which had not been put in the
record.
Chairman Leahy. Without objection.
Senator Specter. And the reasons given by the FBI
consistently are that there were pending investigations. The
Wen Ho Lee matter, which is very elaborate, and that I will try
to deal with tomorrow, because it is so extensive, was not
responded to by the FBI for a whole series of reasons. Every
time the matter looked as if the FBI would respond, the FBI
didn't respond. There was a search warrant executed in April
1999, and then the matter was held in limbo until December 1999
when Wen Ho Lee was indicted, manacled, placed in solitary
confinement, and we still haven't had an answer as to what
occurred which made such a radical change for the man being at
liberty and then being treated as a greater menace than Public
Enemy Number One.
Let me summarize the law which is set forth by the
Congressional Research Service, from April 7, 1995, and this is
all obviously something that you have access to, but I just
want to read a couple of extracts, fairly long, but I think
they are very, very important.
Congressional Research Service: ``A review of congressional
investigations that have implicated DOJ or DOJ investigations
over the past 70 years from the Palmer raids in the Teapot Dome
to Watergate, and through Iran-contra and Rocky Flats,
demonstrates that DOJ has been consistently obligated to submit
to congressional oversight regardless of whether litigation is
pending so that Congress is not delayed unduly in investigating
misfeasance, malfeasance, or maladministration in DOJ or
elsewhere.'' And I am skipping some.
``In the majority of instances reviewed, the testimony of
subordinate DOJ employees, such as line attorneys and FBI field
agents, was taken formally or informally, and included detailed
testimony about specific instances of the Department's failure
to prosecute alleged meritorious cases. In all instances, the
investigating committees were provided with documents
respecting open or closed cases that includes prosecutorial
memoranda, FBI investigative reports, summaries of FBI
interviews, memoranda and correspondence prepared during the
pendency of cases, confidential instructions outlining the
procedures or guidelines to be followed for undercover
operations, and the surveillance and arrest of suspects and
documents presented to grand juries not protected from
disclosure by Rule 6(e) of the Federal Rules of Criminal
Procedure, among other similar sensitive materials.''
My first question, Mr. Mueller, is: Do you agree with the
Congressional Research statement as to the applicable law on
what Congress and this committee would be entitled to obtain by
way of oversight?
Mr. Mueller. It was an awfully long statement. The thrust
of it that----
Senator Specter. And I only read a small part.
Mr. Mueller. I absolutely agree that Congress is entitled
to oversight of the ongoing responsibilities of the FBI and the
Department of Justice. You mentioned at the outset the problems
that you have had over a period of getting documents in ongoing
investigations. And as I stated before and I'll state again, I
think it is incumbent upon the FBI and the Department of
Justice to attempt to accommodate every request from Congress
swiftly and, where it cannot accommodate or believes that there
are confidential issues that have to be raised, to bring to
your attention and articulate with some specificity, not just
the fact that there's ongoing investigation, not just the fact
that there is an ongoing or an upcoming trial, but with
specificity why producing the documents would interfere with
either that trial or for some other reason or we believed
covered by some issue of confidentiality.
And if I might add, Senator, when I was here before in the
Criminal Division, we had two cases where Congress was
exercising, justifiably so, its oversight responsibility, BCCI
and BNL, and we reached the accommodation or the accommodations
specified or described in the excerpt which you read. And I
would expect that we would always have that ability to
accomplish the accommodation that is necessary for Congress to
discharge its responsibilities in oversight.
I might also add, with regard to your previous questions,
the ones that you had the last time, that I do not believe that
it would be appropriate to withhold a memo on the basis that it
would in some way interfere with the relationship between me
and anybody else in the administration.
Senator Specter. Well, are you now saying, Mr. Mueller,
that you would, in fact, have turned over this memo of December
9, 1996, on your own to the Senate oversight committee?
Mr. Mueller. I am not saying, Senator, that on my own I
would have turned that over. I certainly believe that it--that
it could have and perhaps should have been turned over with
appropriate redactions. But if the Senator is asking me if the
information in that memorandum was such that I, without going
through the Attorney General or talking to anybody else, should
go to Congress, I can't say with definitiveness now at this
time I would. I have said that I can see that there might be
occasions where I do not believe that the independence of the
Bureau is served by bringing to the attention of the Attorney
General some matter because of the possibility of political
influence and that I would have to seek some other recourse.
And that recourse might well be coming to Congress sua sponte
or might well be going to elsewhere in the administration. But
I cannot put myself, without all the facts, back into the
position of the decisionmaker at the time of the drafting of
this memorandum and say with you right now concretely that I
would have come to the committee without going through the
Attorney General or taking some other route.
Senator Specter. Well, when you say you would not do it on
your own, or the Latin expression, sua sponte, the committee,
the Judiciary Committee, couldn't ask you about pressure on the
Department of Justice subordinates because the Attorney
General's job might hang in the balance, which is the language
in this memo. This is something that would have to be disclosed
by the FBI Director who knew about it. When you say that you
would not decline to do so because of an embarrassing
relationship, you are coming part way, but you are still not
saying enough to make congressional, Senate oversight worth a
tinker's dam.
If this committee, if those two men, the chairman and the
ranking member, can't have access to this memorandum, I don't
think Senate oversight is worth a tinker's dam.
Mr. Mueller. I am making a distinction, Senator, if I
might, between a request from the Senate for that memorandum,
in which case I would believe that it quite probably should and
would be turned over, and at the time of this--and the
distinction being--and the situation where the information of
this memorandum or the information described in this memorandum
is in the hands of the head of the FBI Director. And the FBI
Director, if that's what you're asking me, without going
through the Department of Justice, without taking any other
step, goes directly to the oversight committee. I'm making that
distinction. I'm saying in the case where there has been a
request for this memorandum, I would expect that the request of
the committee to get this memorandum would be accommodated.
Senator Specter. Well, Mr. Mueller, that doesn't answer the
question at all.
Chairman Leahy. I have a feeling the Senator will probably
be going back to this question.
Senator Specter. Well, I hope not. Mr. Mueller brought it
up. I didn't. Mr. Mueller chose to reopen the question. I
didn't. I'm on a very different point, which I'll come back to
tomorrow since the red light is practically burned out over
there.
Chairman Leahy. Well, I hope the Senator knows I have tried
to give him as much leeway and will continue to.
Senator Specter. I am not unaware of that. I used to have
the gavel on Ruby Ridge and extended to Senator Leahy--as a
matter of fact, sat right here during the Ruby Ridge hearings.
Chairman Leahy. Could I suggest this, that prior to the
hearing tomorrow, that maybe the nominee and the Senator from
Pennsylvania may want to chat to make sure that we are not
talking at cross-purposes. I think the Senator from
Pennsylvania is asking a perfectly valid and important
question. I believe that the nominee, though, is also in a
situation where he is trying to give a very clear idea of what
would be his conduct and what would be his touchstone during
tenure as head of the FBI.
I think this is very important because I don't think there
is any question but that Mr. Mueller will be confirmed. But I
also feel that the Senator from Pennsylvania has asked a very
valid question, and I am wondering if maybe the two could make
sure we are both speaking on the same level and then get an
answer.
Now, maybe it will be an acceptable answer, and maybe it
will not, but at least make sure we are both speaking on
exactly the same level. Would that be fair?
Senator Specter. Mr. Chairman, I would be glad to do that.
This is not a matter which I am posing to Mr. Mueller for the
first time today.
Chairman Leahy. I understand that.
Senator Specter. We talked about it, and then I called him
up last week to talk to him about it further, because I am
not--to have a meaningful answer, it has to be something that
the Director-designate is focused on.
Let me just say this, and we will pick it up privately, and
perhaps again on the record. When you say you would respond to
a request, again, if we don't know about it, we can't make a
request. This was turned up by the FBI in response to a broad-
ranging subpoena on the LaBella memorandum, which is another
item we couldn't get from the FBI, like pulling bicuspids. And
when you say you wouldn't disclose it on your own without going
through the Justice Department, the Attorney General, I respect
that. I think you ought to go to the Attorney General, that you
ought to say, Attorney General Reno, this memo was in the file,
and I think it ought to go to the Judiciary Committee.
And fine, but if she says no, I think you have got the duty
to turn it over. You have got a 10-year term. You have got more
power than the Attorney General, and we found out earlier
today, you have got more power than the President.
Chairman Leahy. Gentlemen, we understand--go ahead, and
this will be the last word.
Mr. Mueller. I agree. I should go through the Attorney
General to try to get it disclosed. I agree with you on that,
Senator.
Senator Specter. But if the Attorney General says no----
Chairman Leahy. Now, gentlemen, if there's further----
Senator Specter. If the Attorney General says no----
Chairman Leahy. Gentlemen, if there's further questions, I
would ask the two to make sure they are fully understanding
what each are asking, and I do know the Senator from
Pennsylvania has asked his question privately before. Let's
hold that for tomorrow because this is too important an issue,
and I think the Senator from Pennsylvania has asked a very
important question. It is too important an issue to have any
doubt in either person's mind what it is. And if the Senator
would be willing to do that, I would appreciate it.
Senator Specter. I will repeat my affirmative reply. I hate
to repeat myself, but it is yes, again.
Chairman Leahy. I appreciate that.
The Senator from New York, who will have the last word on
this, and then we will recess.
Senator Schumer. Thank you, Mr. Chairman. Just one
question, a general question.
It is generally regarded, maybe incorrectly--I don't think
so; I hope so, but I don't think so--that the FBI has some
trouble, trouble that it didn't have 10 or 15 years ago, I
guess, maybe even 5 years ago. And many of us who, as I said,
have been friends of the FBI scratch our heads and say, What is
the trouble? What is the cause of it, et cetera?
Would you just care, so we can understand your thought
process, what you think is--why have there been so many more,
quote, mistakes, public mistakes than in the past? Why is that
friends of the FBI feel compelled to say we ought to look at it
in a new way? What do you think--just a general question, which
you can take where you like, what do you think has happened?
Why isn't it--why is there--I don't want to prejudge the
question, but is there some trouble? And what do you think is
causing it?
Mr. Mueller. I do think there are things that need to be
changed. I basically believe that the FBI has outgrown its
management structure, that over the years there have been a
number of responsibilities that have been laid on the shoulders
of the FBI, and the response, quite understandably, is to put
more special agents on it. But at the same time, there has not
been a similar buildup of the support of not only the special
agents but the management and the leadership within the FBI to
support the additional manpower. And, consequently, there has
been an erosion of management oversight. There has been an
erosion, I believe, of accountability. There has been a--how do
I want to say--an erosion of clear responsibilities within--for
accomplishing certain things and in some large part that
failure to keep the management structure or to have a
management structure adopted to the new responsibilities of the
FBI has contributed to the mistakes.
Senator Schumer. So you don't disagree with the analysis
that, if not the top job, one of the top jobs is the management
structure?
Mr. Mueller. I don't disagree with that at all.
Senator Schumer. And you believe that the personnel that
they are getting to apply, the newer, younger ones, are every
bit as qualified as the old-timers who have been there a long
time?
Mr. Mueller. Yes, they are superb. And, again, the agents
and most if not all of the managers I have had occasion to work
with are dedicated, hard-working, respectful, and respected law
enforcement individuals.
Senator Schumer. Right. One more question. You know, it
seems to me that when the FBI takes a particular task, it still
does a great job. I mean, I am familiar with the terrorism one
because I had been calling for them to do more on it, and then
the World Trade Center, we had that terrible accident in my
city, and they did a great job. They had to shift resources.
And you haven't heard of flubs in that area. In fact, you have
heard of great successes, the most recent when they found that
fellow coming through, I think it was, Vancouver over the
American border, and they could have saved thousands of lives
or hundreds of lives by what they did.
So it seems when there is a focus, they still do every bit
as excellent a job as they always did. Are there some places
that have lost some parts of the FBI, where that focus from the
top has been lost or the mission is not clear or has become
dissipated? Is that one of the problems, too?
Mr. Mueller. Well, I think you--in brief answer to your
question, I think one has to continually look at the priorities
and map out the manpower and where your manpower is within the
organization and where it's going to be 5 years down the road.
But each one of those successes--each one of those successes
has taken and drained resources from the FBI. The World Trade
Center bombing, the African embassy bombings, the McVeigh
bombing--all of those have taken resources and the FBI has
thrown resources at those particular incidents, as well as
others, and done a superb job in investigating and supporting
the prosecution of it.
What does not come and is not publicized is when you're
taking those resources, you are not filling in the back side.
And what has been sacrificed is the infrastructure, the support
that is necessary for the day in, day out FBI agent to do the
job and perform its responsibilities.
Senator Schumer. That is a great answer. It is one that
seems consonant, at least from my outside view of what is
happening.
Mr. Chairman, thank you.
Chairman Leahy. Thank you. I thank all the Senators for
their cooperation, and I especially thank Mr. Mueller and his
family.
We will stand in recess until 10 tomorrow morning.
[Whereupon, at 4:39 p.m., the committee was adjourned, to
reconvene at 10 a.m., Tuesday, July 31, 2001.]
NOMINATION OF ROBERT S. MUELLER, III TO BE DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION
----------
TUESDAY, JULY 31, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Biden, Kohl, Feinstein, Durbin,
Cantwell, Hatch, Grassley, Specter, and DeWine.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. So we can reconvene, let me just say how we
will proceed. We will begin with the two Senators from
California who will give the formal introduction of Mr.
Mueller. With their airplane schedules yesterday and because I
started somewhat earlier than usual--because we are in what we
hope is the last week of the session before the August recess--
they would have had to interrupt the hearing to do it
yesterday. We thought this would make more sense.
I spoke with Senator Specter, and I know he has met with
Mr. Mueller and will have a series of questions. We are trying
to organize the time for that. Senator DeWine is here. Senator
Grassley I believe is going to come right after the
introductions, when we will actually begin the questioning.
Senator Hatch is, as so many times happens, at a Finance
hearing where there is a person from Utah who is up for a
confirmation and is to be introduced.
So having put some of that on the record to describe what
is going on, I am delighted to yield to Senator Feinstein, who
is a valued member of this committee. We will hear from her
first.
Senator Feinstein, we are delighted to have you here, and I
do appreciate the information you and Senator Boxer have given
me in the discussions I have had with both of you about Mr.
Mueller. They have been extremely helpful.
Senator Feinstein?
PRESENTATION OF THE NOMINEE BY HON. DIANNE FEINSTEIN, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Feinstein. Thanks very much, Mr. Chairman. I am
very honored to be here today to say a few words about Robert
Mueller, the President's choice to become the next Director of
the Federal Bureau of Investigation. I strongly believe he is
the right man for the job and the times.
The job of FBI Director is not an easy one under any
circumstances. The Director oversees 11 divisions and 4 offices
at FBI headquarters, 56 field offices, 400 satellite offices,
and more than 40 foreign liaison posts. The Director will
oversee a budget of more than $3.5 billion per year and will
supervise more than 11,000 special agents and 16,000 support
personnel.
But the person who takes over the post of FBI Director this
year is going to face an even more daunting challenge. Overall
crime rates may have gone down, but criminals have never been
so sophisticated or enterprising. New and ever-involving
developments in technology make it easier for criminals to
evade and even monitor law enforcement agents who are looking
for them.
Terrorist cells, drug cartels, and other sophisticated
criminal organizations are becoming better and better at
learning the ways of law enforcement and changing the way they
do business to avoid detection and capture.
To be successful, law enforcement too must be willing and
able to change in order to keep up and use cutting-edge
technology.
The FBI's handling of several recent controversial cases
puts pressure on the new FBI Director to make some necessary
changes and to produce results. These include the missing
McVeigh documents, the Hanssen spy case, the Ruby Ridge
investigation, the Wen Ho Lee investigation, and 440 missing
firearms and 171 missing laptops. It is a job that I believe
demand someone who can remain focused on the core mission of
the Bureau, solving crimes and catching criminals, while at the
same time focus also on turning inward and on fixing some of
the problems we have seen within the Bureau itself.
So I believe that Robert Mueller is the right man for this
time. I believe he has a very good organizational sense. I
believe he will be a hands-on manager, and I think we will see
increasingly where Washington, rather than the SAC, will take
responsibility in major incidents.
Mr. Mueller has spent most of his working life serving the
people of this country, first as a Marine and later as a
Federal prosecutor. He led the Criminal Division in the
Department of Justice, and he served as Acting Attorney General
earlier this year.
I became familiar with his work during his time as United
States Attorney in my hometown of San Francisco. As a matter of
fact, the Mueller family lived directly across the street from
me for a substantial period of time.
When Mr. Mueller arrived as U.S. Attorney in 1998, that
office had been criticized for a number of failings: not enough
prosecutions, internal misconduct, sloppy management, among
other things. In just 3 years, however, Robert Mueller nearly
doubled the number of criminal prosecutions. He increased the
amount of money collected in civil cases from just $7 million
to $200 million.
So this is just one example of what people mean they say
that Robert Mueller is a man who can come in and whip an
operation into shape. No nonsense, no excuses. Just results.
When he led the Criminal Division in Justice in the early
1990's, he oversaw the investigation into the Pan Am bombing,
and he also saw that that brought General Manuel Noriega out of
Panama into an American jail and mob boss John Gotti. These
were both two high-profile, complicated cases that demanded
careful attention.
During his tenure at Justice, DOJ's Criminal Division
established the Computer Crimes Section, early evidence that
Mr. Mueller understands the need to adapt in order to combat
new methods of crime. He has worked under both Democrats and
Republicans, and he has been praised by both.
I want to just quote U.S. District Court Judge Charles
Breyer, who said of Mr. Mueller, ``He is a true professional.
He is not guided by a particular ideology. He is guided by a
sense of what the law is and what is fair.'' And most
impressively, I think he is a man who left a $400,000 job as a
partner in a Boston law firm to come back to Washington and
prosecute murder cases, and he has never looked back.
I think truly of all the fine talent in the United States,
Bob Mueller is the best at this particular point in time. I
think we are going to see a hands-on Director, filled with
integrity, and I think he is going to establish his credibility
up here with our committee, Mr. Chairman, and on the entire
Hill.
Thank you very much.
Chairman Leahy. Not prejudging anything, but reading
between the lines, I would say that you have at least one vote
on this committee after hearing Senator Feinstein's comments.
Senator Boxer?
PRESENTATION OF THE NOMINEE BY HON. BARBARA BOXER, A U.S.
SENATOR FROM THE STATE OF CALIFORNIA
Senator Boxer. Thank you so much, Mr. Chairman, Senator
Hatch, and nice to see you, Senator Specter and Senator DeWine.
It is certainly a great pleasure to be here this morning. I
will make a brief comment. I will really concentrate on the way
I came to know Mr. Mueller and why I think, as Senator
Feinstein says, he is the right person at this time for this
job.
Nearly 2 years ago, this committee considered Mr. Mueller's
nomination to be U.S. Attorney for the Northern District of
California. I recommended him for this job to President
Clinton, and I want to tell you why. I don't think it is--I
mean, everyone knows it is unusual for a United States Senator
who is a Democrat to recommend someone with impeccable
Republican credentials for such a position, or vice versa, for
a Republican Senator to choose a Democratic nominee. But this
is a nominee who is quality, and he doesn't have a political
bone in his body that I can tell. He is here to do a job, and
that is so important, particularly at this particular point in
time.
As Senator Feinstein said, in 1998, when the position of
U.S. Attorney for the Northern District of California became
vacant, morale at the office was at an all-time low. Cases were
tremendously backlogged. Its focus was scattered. And, most
important, I think, than all of this, the office had lost the
public's confidence. There had been some terrible press reports
of what was going on. It was just a really, really bad time.
And I give Janet Reno a lot of credit, then-Attorney General
Janet Reno, for tapping Robert Mueller, who was then the chief
of the Homicide Division of the U.S. Attorney's Office here in
the District, to fill that position on a temporary basis. I
thought it was a visionary choice of hers.
Right away, Mr. Mueller reached out to me, reached out to
my staff. He told us of his plans to reinvigorate morale in the
office and to restore the public's trust. He made an immediate
impact, Senators. He began by requiring--and this is pretty
bold. He began by requiring everyone to submit their
resignations, and no one was rehired to their previous
position. That should tell you, Mr. Chairman and Senator Hatch,
not only of the severity of the problems in the office, but of
Mr. Mueller's no-nonsense approach to his job.
Mr. Mueller proceeded to appoint an unprecedented number of
women to top management positions. He opened an office in the
Silicon Valley to ensure that the U.S. Attorney's Office would
address one of their biggest problems in Northern California--
high-tech crimes. He committed resources to the previously
neglected problems of health care and securities fraud, as well
as to environmental crimes. And he did so without a lot of
fanfare or press conferences. He did it behind the scenes. But
he did it so effectively, Members, that the changes became very
apparent.
The public couldn't help but take notice of the increased
efficiency and effectiveness in the office, the heightened
morale of those who worked there. He began to restore the
public trust and confidence of law enforcement.
So, Mr. Chairman, 7 months later, I decided that Robert
Mueller was the best person to have that job of U.S. Attorney
on a permanent basis, and I asked President Clinton to nominate
him for that position. Again, politics played no role in my
decision, nor did it play any role in Robert Mueller's
performance.
I don't believe that partisan politics should have any
place in selecting U.S. Attorneys, and I certainly don't
believe it should in the selection of a Director of the FBI. In
some respects, the problems facing the U.S. Attorney's Office
for the Northern District 3 years ago mirror those facing the
FBI now. Clearly, the FBI is a much grander scale. You can't
compare it exactly. But the similar types of problems exist.
So I say, in closing, that this is why I think Robert
Mueller is the perfect candidate for this job. I wish him so
much good luck. This is not easy. This is so difficult. But I
think it is a measure of this particular individual that he is
willing to step up to the plate, and I feel very good inside
that he is going to be very successful.
Thank you for treating him with such respect, all of you,
and for welcoming him here to the Senate.
Chairman Leahy. Thank you very much. I thank both Senators.
I know you both have other commitments. Senator Feinstein, of
course, as a member of the committee, is welcome to join us
here.
Mr. Mueller, please take your earlier seat. The witness has
already been sworn, and under our early bird rule, we will now
go to Senator DeWine.
Senator DeWine. Mr. Chairman, thank you very much.
Mr. Mueller, you and I met the other day, and I appreciated
the opportunity to talk with you. Good to see you again.
Mr. Mueller. Good morning, Senator.
Senator DeWine. I would like to talk a little bit about an
issue you and I talked about the other day, and that is the
whole issue of crime, technology, and how we make sure that
gets down to the local law enforcement agencies. I know that
you established the first computer crime unit in the Department
of Justice a few years ago, and I certainly applaud that
initiative. Technology truly is the key to fighting crime in
this century, and it is so important that we share information
to enhance the ability of computer systems to fight crime right
down into each community in this country.
Our national systems for criminal histories, fingerprints,
DNA, ballistics are only as good as the information that goes
into them, only as good as the information that comes from our
local communities and local law enforcement agencies.
Several years ago, I wrote the Crime Identification
Technology Act, and Chairman Leahy and Senator Hatch were very
instrumental in getting that bill passed.
I wonder if I could just ask you about your commitment to
making sure that local law enforcement agencies, the people who
ultimately end up dealing with 90 to 95 percent of our crime
problems in this country, have the ability to access your data
bases, have the ability to get in and get out, have the ability
to put in information, and also have the ability to get that
information out.
Mr. Mueller. To the extent that the FBI's responsible for
maintaining data bases accessed by State and local law
enforcement, I will do everything I can to make that access
swift and certain. My own experience is that there is often a
disconnect between those who write the data bases and those who
have to use the information on those data bases. And, too
often, the user is not taken into account wen you construct a
data base, operate a data base. You have the engineers and the
programmers who are putting together the data base, but you
have those sitting at their desks in a local police department
that have to use it. And with the advent of Windows and user-
friendly systems, there is no reason in this day and age why
access to that information shouldn't be swift and certain,
particularly with the fact that we have sufficient backbone in
terms of networks to handle that traffic.
On the other side of the--apart from access to the data
bases, it's also important, I believe, for the Bureau to work
closely with the State and locals in addressing computer crime,
for instance, and there are a number of ways we can do this.
One way is to work together to construct or put together a
computer forensics laboratory, as has been done in San Diego,
where you have State, local, and a number of Federal experts
all working together to analyze hard drives that have been
seized in searches and the like. And that has a number of
benefits.
But, second, it's very important for us to exchange
training, in other words, for the FBI to perform its
traditional role of assisting in training State and locals, and
for the FBI to learn from State and locals. So there are a
number of ways I think we have to work together to address the
technological improvements that we're all seeing.
Senator DeWine. You and I talked the other day a little bit
about international parental kidnapping and my concern in
regard to that. We have really seen in the last few years an
upsurge in the number of incidents of what we call parental
kidnapping, where one parent kidnaps a child and takes a child
out of the country.
Many of the so-called left-behind parents have talked to
me, and they frankly feel they have not received sufficient
assistance from the State Department nor from the Department of
Justice. And I have talked to the Attorney General about this,
but I would just like to talk to you a minute about it and ask
you whether or not you believe that the FBI in the appropriate
case will be able to put some emphasis on this problem.
Mr. Mueller. I've had some experience in my district with
those problems in which parents will come to the FBI or go to
the local district attorney and a warrant will be outstanding,
and we used unlawful flight to avoid prosecution warrants to
attempt to remedy the situation. We can do that.
The network of LEGATs overseas are extremely helpful, I
believe, and can be extremely helpful in gathering information
as to the whereabouts and the circumstances of the parent who
absconded with the child.
On the other hand, we are constrained to operate within the
legal systems of the foreign countries, and the FBI can just do
so much. We do want to make the resources of the FBI and the
expertise of the FBI available, whether it be in the UFAP
context or in assisting in obtaining information as to the
location or whereabouts of those individuals.
Senator DeWine. Yesterday, I know you talked about the
FBI's own internal technology and the security for that, and I
just wonder how quickly you think you will be able to
implement, fully implement the technology update plan that the
FBI has.
Mr. Mueller. There's a 3-year technology update plan called
Trilogy, and the good news about that is it's laying the
foundation, whether it be the networks or the software, the
hardware, the user interfaces for bringing the FBI agent into
the modern era, and I will be pressing hard on that.
There are other areas which build on that, and, in
particular, in my own mind it is access to documents. It is the
storage and easy retrieval of documents, of imaging documents
when they come in immediately so that you have ultimately what
is referred to in the private sector as a paperless office. But
you need the basic structure upon which to build these
additional advances, and the good news is that the FBI is
moving ahead with the assistance of Bob Dies, who came in from
the FBI--or not the FBI, from IBM, to modernize. The not-so-
good news is that once we have that structure in place, there's
a lot more to do.
Senator DeWine. You and I talked the other day about the
whole question of the FBI's cooperation with other Federal
agencies, but also about the FBI's cooperation with local law
enforcement agencies.
How does the head of the FBI set the right tone, and have
the impact on the culture of the FBI to continue what I have
seen has been an improvement? I have seen a significant
improvement over the years in the FBI's working with local law
enforcement. But there is always room for more improvement. I
just wonder if you could address how you intend to set that
tone for the FBI.
Mr. Mueller. I do think it's improved tremendously over the
last few years. I think I've seen that myself.
I guess there are a number of ways that I have in the past
and I think would in the future do that. One is outreach. You
sit down with representatives, members of State and local,
whether through their organizations or where you travel, and
hear their complaints and address their complaints. Whenever
you hear a complaint from State and local that an FBI agent or
a special agent-in-charge has stolen an investigation, which
you occasionally find, it has to be addressed. And the emphasis
always has to be on cooperative efforts and in understanding
that we are but one of a number of law enforcement entities
that are instrumental in addressing crime in this country and
that we have something to bring to the table, but the other law
enforcement agencies have as much, if more, to bring to the
table in any particular investigation.
And the last thing, I think, is the FBI can and should
allow others to trumpet its successes. There's always, I guess,
a tendency to go out and say look how good we are and look how
we did it. In my own mind, the praise that makes the biggest
difference is that that comes from others with whom you've
worked. And my hope would be that we could operate on that
principle.
Senator DeWine. Good. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Senator Feinstein?
Senator Feinstein. Thanks very much, Mr. Chairman.
I would like to followup on a question Senator Schumer
asked you yesterday regarding the Attorney General's criminal
background check records under the Brady Act being kept for
only 24 hours, and yesterday Senator Schumer indicated that
several sources had told him that the FBI had disagreed with
that decision. And your discussion centered around whether it
is appropriate for internal disagreements to be aired before
Congress.
Without getting into that discussion again, I would like to
read from an official FBI document published last month titled
``National Instant Background Check System Operations Report.''
This is November 30 through December 31, 1999. In that
document, on page 25, under ``Recommendations,'' we read, and I
quote, ``It is clear that the ability of the National Instant
Criminal Background Check System to stop prohibited persons
from acquiring firearms would be improved, among other things,
by longer retention of records. The Advisory Policy Board
concurs with the FBI to have a 1-year retention of records.''
Despite this recommendation for a 1-year record retention,
the Department of Justice eventually bowed to outside pressure
and implemented a final rule reducing the record retention
period to just 90 days. This reduction to 90 days occurred on
January 22, 2001. That is just 6 months ago. Yet now Attorney
General Ashcroft has announced that records will not be kept
for 1 year, as this official FBI document recommended, or even
for the 90 days established earlier this year. Instead, records
will be kept for just 24 hours, a timeframe that you admitted
yesterday might--and I think certainly would--impede law
enforcement's ability to monitor the system and catch bad gun
dealers that put most crime guns onto the streets.
Let me ask this specific question: Given the time limits on
the background checks themselves, 3 business days under current
law, have already resulted in a failure to prevent thousands of
sales to felons, do you think it is appropriate to further
jeopardize the system by weakening the ability of law
enforcement to audit the system for problems?
Mr. Mueller. Senator, I've got to say that I have not
participated in the debate on the NICS system. I am generally
familiar with the NICS system, but have never had occasion to
use it, implement it myself, have not been briefed on it by the
FBI, and am unaware of any studies one way or the other as to
the harm done or not done by either lengthening or shortening
the time period for the maintenance of the records.
I'm aware of the statute that says that the records should
be destroyed, but I cannot say one way or the other what the
effect of any particular period would be on law enforcement,
basically because I am ignorant of the underlying factual
material and I have not been part of the debate.
In answer to the question yesterday, I responded it could
because I cannot rule out any possibilities. But it is from a
basis of ignorance that I respond.
Senator Feinstein. Well, I think the point I want to make
is that those of us on this committee that are very dedicated
to see to it that law enforcement has the time it needs and are
really affronted by this change, we view it as unnecessary.
There has been no demonstrated in convenience to anyone that I
know of. And if you weigh the benefit of keeping a gun out of
the hand of a felon, that has to have a substantial benefit. So
I am going to ask this question again in writing to you, let a
month go by, and then ask it again, if I might.
The Intelligence Committees of the House and the Senate met
this morning with the Vice President, and one of the subjects
that came before the committee was the issue of cyber crime.
And I would like to ask this question: One problem with
investigating cyber crime is that an attack through the
Internet will often pass through multiple jurisdictions. For
example, an attack may start at a computer in San Francisco and
then pass through computers in Chicago, Houston, Miami, and
Washington before ultimately interfering with a computer in New
York. Law enforcement seeking trap and trace authority needs
today to get court orders from each jurisdiction through which
the attack passed. That is a very onerous task.
Would you support efforts that would allow law enforcement
to get trap and trace authority in the cyber crime context in
just one court order?
Mr. Mueller. I think that sounds like something that would
be exceptionally beneficial. I can tell you that the way the
Justice Department responds to those issues now is that we have
in every U.S. Attorney's office individuals dedicated to
handling cyber crime cases. There's an initiative that was
announced last week to beef that up in certain particular
offices, but those individuals form a network that is in
constant contact with each other and expedites the obtaining of
such orders. That is not as beneficial, however, as having the
ability to go into one court and having nationwide service
based on one particular court order.
So we do the best we can under the circumstances, but in
that area, as in probably a number of other areas, when it
comes to addressing cyber crime, we will be looking to Congress
to give us some assistance.
Senator Feinstein. Last May, the administration proposed a
variety of modest changes to consolidate our policies to combat
terrorism. Essentially, the President suggested transferring
from the FBI to FEMA the responsibility of working with local
officials in preparing for and responding to a catastrophic
attack. The FBI would remain in charge of investigating
terrorist incidents and of crisis management.
Do you know whether this proposed change has been
implemented yet? If not, do you know when it will be? And do
you agree with it?
Mr. Mueller. I understand that FEMA will be expanding to
encompass some of the activity that previously had been
undertaken by the FBI. I am not familiar with the specifics,
and I'm not certain of the timing. But when I was here as
acting deputy, the issue was discussed there, and I'm familiar
with the--the fact that FEMA would be expanding its undertaking
to provide training to state and locals, and perhaps the FBI
would be doing less than that.
I believe that when it comes to allocating responsibilities
to address a threat such as terrorism that one ought to look at
the various responsibilities and make certain that they fit and
are within the appropriate agency.
The one concern I believe we had with regard to the FBI is
that we wanted to make absolutely certain that when it comes to
a terrorist attack and it comes to authority over the crime
scene, that there would be no question but that those who were
responsible for conducting the investigation would be in charge
of the crime scene. But with that assurance, I think the
expansion by FEMA of the training and other such
responsibilities was appropriate.
Senator Feinstein. Thank you. I would like to ask a quick
question, because California is a big copyright state, and the
loss is about 20 billion a year from copyright piracy. I am
very pleased to say that while you were U.S. Attorney for the
Northern District, you, of course, headed, and in many ways had
been a leader in, an effort to combat this sort of cyber
piracy. As a matter of fact, your office was one of the first
to pursue enforcement of the criminal provisions of the Digital
Millennium Copyright Act, and you also pioneered the
establishment of a special Computer Hacking and Intellectual
Property Unit to focus on cyber crime prosecutions, training
and outreach. In fact, the Attorney General recently traveled
to Silicon Valley to announce the formation of 10 new CHIP
units in 9 cities, all of which was patterned after the program
you established in San Francisco.
Can you assure us that prosecuting cyber piracy will be a
priority at the FBI? And would you care to comment on how you
believe the FBI can be most effective in combatting criminal
violations of our intellectual property laws and other forms of
cyber crime?
Mr. Mueller. Yes. I mean the answer is yes. I can assure
you that would be a priority at the Bureau. I am quick to say
though that we cannot take--cannot conceivably take every case
that is out there with regard to the pirating of software or a
movie or a videotape, and consequently, I do believe that the
FBI has to prioritize its cases so that it takes those cases
where it obtains, as a result of a prosecution, the greatest
form of deterrence. Now, that can be in a single case or it can
be in a set of cases which are smaller, but when prosecuted
together, serve the goal of deterring others for committing the
same type of crime.
Senator Feinstein. One last question on this subject. And I
am asking these because--I will be very candid with you--a
number of people in California have asked me to ask these
questions. They are real concerns. I want to ask specifically
about the Digital Millennium Copyright Act and the No
Electronic Theft Act, which provides safeguards against digital
piracy and the theft of intellectual property.
I certainly believe that proper and adequate enforcement of
these laws through both civil and criminal enforcement measures
is important in maintaining an environment in which the
widespread distribution of legitimate high-value digital
content can take place.
Now, I would like to ask do you agree that these two bills
are working? Do you see need for this committee to take action
in this area to provide any greater assurances, or do you feel
that the FBI needs any additional legislation to allow you to
perform adequately in this area?
Mr. Mueller. Senator, I confess that I am not as intimately
familiar with each of those bills as I should be. I know that
we have had cases on at least one of those. They are relatively
recent, so I'm not certain that we have a substantial track
record on how effective they are and what is missing that we
need down the road. But I certainly would be looking at that,
and to the extent that we need either additional investigative
tools or additional statutes to address the problems or
amendments to the statutes, then I would be happy to provide
them.
I will say that, particularly in Silicon Valley and in our
district, enforcement of those laws are critically important.
And part of the effective enforcement of those laws is to have
dedicated Assistant United States Attorneys and FBI agents who
are knowledgeable of the provisions and understand what
evidence is necessary to have a successful prosecution under
those statutes. We have done that, I think, with our approach
in the Northern District of California, and the expectation is,
with expanding that program across the country, other districts
will have that same degree of expertise.
Senator Feinstein. Perhaps you would be willing then,
within a reasonable period of time, like 6, 8 months, to take a
good look at both those bills and see what the national
experience, law enforcement experience is, and make some
recommendations or some comments to this committee.
Mr. Mueller. Surely.
Senator Feinstein. I would like to ask you to do that.
Mr. Mueller. Yes, ma'am.
Senator Feinstein. Thanks, Mr. Chairman.
Thank you. I would note that it is very legitimate for the
witness to say that there are areas that either are outside his
expertise or he is developing expertise.
I think it is fair to say that if confirmed, Mr. Mueller
will be back before this committee on more than one occasion,
and we will have a chance to look at some of these issues. I
would also note that it would be my intention, with the
backing, I believe, of the ranking member and others, to
periodically, not too often that it is a burden on anybody, but
periodically have some informal meetings of members of the
committee, both parties, with the Director. We used to do that.
I would like to get back to that, especially sometimes we will
be discussing classified material and we can do it in one of
our secure rooms here. It can be an off-the-record discussion,
but will allow us to express our concerns and he to express
his, in probably more candor than could be done in some of
these sessions, especially on some of the areas of terrorism
and cyber crime where there are issues a lot of us would like
to explore, but we would not in an open session.
Senator Grassley is here. What I am doing is those senators
who did not have a chance to question yesterday on the first
round, today will have the full 10-minute round. Senator
Grassley.
Senator Grassley. Thank you. Good morning, Mr. Mueller. I
apologize because yesterday I had to leave for another meeting,
and I think you were very responsive to some of the questions
that I sent you in a letter last week, both in your opening
statement, and as a lot of my colleagues, who shared some of my
same concerns, asked you questions. So I will try not to be
repetitive of questions that were asked yesterday as best I
could determine that through my staff.
First, as you know, in my letter I raised the matter of
cultural problems at the FBI. In regard to this issue you have
stated that the FBI has failed to, quote, ``provide adequate
infrastructure to meet the buildup in manpower and
responsibilities,'' end of quote. I want to be sure if I
understand clearly your point, because while I would agree the
Bureau has had problems managing its rapid growth, when I talk
about cultural arrogance at the FBI, I am not talking about
this as a resource issue. I am talking about attitude, demeanor
and approach to things. It is the kind of arrogance that places
image above substance, exemplified by the FBI's fondness for
holding press conferences in very high-profile cases before the
investigation is complete and all the facts are in, and it
gives fuel, I think, to the mistaken notion that those within
the Bureau are somehow above accountability and reproach.
This arrogance is a common thread that is woven into a
majority of the problems the FBI has experienced over several
years, so with that in mind, my question: do you believe there
is a culture problem within the Bureau, and if so, how do you
plan to approach it as a way of correcting things?
Mr. Mueller. I do think there is a problem. I attribute it
to a number of factors----
Senator Grassley. Maybe not a cultural problem. Is that the
inference I should----
Mr. Mueller. No, not necessarily. I have a hard time
getting my hands around what one means by culture. In other
words, one asks a cultural problem. My question is, OK, what
feeds that perception of a cultural problem, because I need to
know what feeds it in order to be able to address it.
Senator Grassley. OK, legitimate.
Mr. Mueller. And certainly one of those areas is--and it's
not--it's a problem, it's not--and it's a problem that has to
be addressed and addressed, and that's infrastructure. That
does not necessarily take care of the perception of the
arrogance as you have pointed out. And part of that, I think,
is because the perception is there because there has been at
least the appearances of defensiveness, a unwillingness to
admit mistakes quickly, immediately, forthrightly, and once
mistakes are admitted, to be absolutely truthful in terms of
what happened and how we're going to rectify it.
And as I pointed out in my statement yesterday, I think it
is absolutely unacceptable to try to cover up and not disclose
something that needs to be disclosed, and more importantly, or
as importantly, it's unacceptable to try to shift blame to
somebody else. And to the extent that that has been the case in
the past, it is something that I want to address and eliminate.
I know in your letter you talked about the cultural problem
and tying it into arrogance. And defensiveness I think can feed
that. I know in talking with state and local law enforcement
over the years, that there is perceived arrogance of the FBI.
Some of it is attributable to the perception that the FBI will
come in and take a case, elbow a state and local out of it, and
then take the credit for it, whether it be by press conferences
or otherwise.
In the past I have had opportunities to work with state and
local and foreign law enforcement on a number of occasions, and
the posture agents should take is that ``We have something to
bring to the table; if it makes some sense to have us, an
investigation that can be done by the state and locals, we
ought to be there to assist.'' And on the other hand, it is
more--rather than us taking credit for it, I would much prefer
to have, at the conclusion of an investigation, that the state
and locals stand at the podium, do the press conference, and
thank the FBI. I am not a great one for press conferences, and
I think in the 3-years I've been U.S. Attorney I think I've had
two. And I think you do your job quietly, and if you do it
professionally and well, then others will give you credit for
it. So to the extent that there may be the perception of
arrogance along those lines, I would hope to dissipate that
perception.
Other factors contributing I think to the perception that
the FBI is not always forthcoming is that there are areas
where, I believe, people need to have their responsibilities
well defined and be held accountable when they do not perform
those responsibilities. There are some areas that in the brief
time I've had since being considered for this position, I've
seen where there's overlapping responsibility, and where there
are overlapping responsibilities it is too easy to avoid
accountability and to point fingers at others, and one needs to
address that and assure that you eliminate those overlaps of
responsibilities.
Those are just some responses. I could go on for a period
of time, but that's----
Senator Grassley. Why do I not move on, because I want to
still keep on this theme or arrogance. In my letter I raise the
issue of access to documents, and I know that it has been
raised also by Senator Specter. The FBI, I think, has a poor
history of cooperation in producing and providing access to
documents. And I want to be sure that I understand how you
perceive this problem. Now, we can debate classified documents.
We can talk about the issues of privacy and confidentiality.
But what I cannot conscience is the deliberate pattern of
denying, delaying or simply not complying with legitimate
requests. Time and again the FBI has shown contempt for any
public or private entity that dares to question its motives and
performances. And now I am going to refer to, Senator Danforth
raised this issue with his alarming testimony on June the 20th,
where we learned that during the course of the investigation of
FBI actions at Waco, FBI personnel, quote, ``were not
cooperative,'' again quote, ``were cavalier or resistant in
turning over evidence,'' and again quote, ``there was a lack of
openness and candor, complicated my investigation,'' meaning
Senator Danforth's investigation.
This is, to me, an all-too-familiar pattern that I have
witnessed in regard to getting information as a senator, but in
regard to the problem of the McVeigh documents, you have
stated, quote, ``If only the FBI had a computer capability, we
would have been able to produce the documents.'' I fully
support the FBI's efforts to upgrade information systems, but I
have been around too long to buy into the fact that the dog-
ate-my-homework sort of excuse. Again, if you think these
problems are resource related, then I think you are missing a
big picture, and that is, for whatever reason, FBI managers
make deliberate decisions not to provide documents that are
requested of them. So I ask you, how will you change the
Bureau's penchant for denying legitimate access to FBI
documents and witnesses?
Mr. Mueller. I do not recall--I may well have, because I
believe it's part of the problem, access to--a ready access to
documents I think is part of the problem. But I have not said
that that's all of the problem. Accountability, responsiveness
is a substantial part of the problem. And my own way of
handling matters like this is to make persons accountable. If
there is an undertaking such as the Danforth undertaking or an
investigation by a committee of Congress, I would expect to
have somebody responsible for assuring that we are responsive
on that particular issue, responsive in terms of meeting the
requests of--and accommodating the requests of the committee,
and where we are unable to, or believe that there is some
confidential interests that are implicated, to be able to state
honestly and directly to the committee what should be done to
accommodate the committee's request.
In the past where I have had Assistant United States
Attorneys, who believe that it is important to only give to
defense counsel that which is appropriate under the rules, I
have required of them that they take the posture that you
provide just about whatever you have that will assist the
defendant regardless of the rules, and to be open. I would like
to, and expect to, foster a change in the perception so that
you do have the feeling at the end of the day that the FBI has
been responsive. We may disagree occasionally on what should be
produced, but I have always found that it is--the best practice
is to sit down with defense counsel and hash out and then
directly discuss that which is on the table, so you identify
your disagreements and there is no perception that someone is
hiding the ball.
Senator Grassley. Mr. Chairman, was that a 10-minute period
of time?
Chairman Leahy. Yes.
Senator Grassley. Well, then I will have to submit the rest
of my questions for answer in writing.
I thank you, sir.
Chairman Leahy. We will have other rounds if the Senators
would like, but I would also note that several senators are
going to have to submit written questions, because I am putting
this on a fast track. Should you be confirmed prior to the
answer of those, do I have your commitment that all of those
questions will be answered in full?
Mr. Mueller. Yes, sir.
Chairman Leahy. Thank you. Senator Cantwell.
Senator Cantwell. Thank you, Mr. Chairman.
Mr. Mueller, thank you for already answering a variety of
questions, both today and yesterday, related to technology and
cyber crime. I will try to be specific in my questions. Sorry,
I was not here yesterday for your statement, but I have a copy
of that.
The glaring inconsistency within the FBI, in my mind, seems
to be that the internal information systems are not where they
need to be. We have all heard examples of that this morning and
I am sure yesterday as well. And yet the FBI has continued in
its efforts with Carnivore, which has been plagued with a
variety of privacy concerns. I see an inconsistency there. I do
not know if you have made statements yet about what kind of
review of resources, and allocation of resources, you intend
for those two tasks, or if you think that maybe some of the
Carnivore resources should actually be spent on improving your
IT information system, particularly given the concerns that so
many privacy entities have about Carnivore?
Mr. Mueller. I am sensitive to the concerns of relating to
privacy as a citizen. But also having sat down and talked with
a number of the privacy groups here, when I was assistant--when
I was Acting Deputy Attorney General, I am sensitive to the
concerns about what is called DCS 1000, previously known as
Carnivore, and other technological advances. There is, I think,
a--there are two separate paths though that we're looking at.
On the one hand the investigative tools and the investigative
expertise developed by the FBI, and the new technologies I
think is next to none. I think they have made rapid advances.
There are privacy concerns that we have to address, but
nonetheless, I do not think that the FBI is behind in its
ability to investigate attacks on computers, denial-of-service
attacks on computers and the like.
On the other hand, the technological infrastructure whereby
the ability to scan and put documents into a data base and have
them automatically retrievable, I think is behind what you
would find in a business, in a law firm, and that's an area
that we really need to look at so that you pick up that side of
the technology piece, so that we can respond better to our
responsibilities.
Likewise, the internal mechanisms and controls that could
be benefited by new technologies, whether it be e-mail or case
tracking systems, have to be modernized so that we can have
greater control and understanding of the caseload that we have.
Senator Cantwell. Did you say that you did not think that
the FBI was behind the curve in investigating cyber crime
activities?
Mr. Mueller. I think we are on the cutting edge. We need
additional expertise. We need--we could always use additional
agents, we could always use additional technology. But I do
believe the FBI, at least in my district as I've seen it, does
a very capable job, given the tools, the limited tools it has--
and we could always use some more statutes--does a good job in
investigating those crimes.
Senator Cantwell. Well, we in the Northwest we have had a
series of violent anti-technological terrorist activities. In
fact, one was associated with the University of Washington, an
arson that took place there. One of the special agents in
charge of the FBI's Seattle office, basically responded to the
challenge of investigating the crime by saying, ``We don't have
an organizational structure to attack, no finances, no
memberships, no meetings.''
So part of the challenge is that so much of this is the
organization basically exists online. I think at least in that
agent's mind, additional resources or new laws might be
considered. I do not know if you have a comment on that.
Mr. Mueller. I think that is where the privacy rights of
individuals perhaps intersect with the desire and the
requirements of appropriate law enforcement. I am not familiar
with the specific facts of that case, and I am not familiar
with the specific investigative tools that that special agent
is addressing in saying that we could use more, and I am not
certain whether what we seek is unavailable under the current
statutes.
Senator Cantwell. We would be happy to provide you
information that we have. We will submit a further question on
that.
With regard to Carnivore, specifically, there has been so
much concern about how this issue has been approached by the
FBI. I do not know if you saw yesterday's New York Times
article about the organized crime case and the concerns about
privacy, but one of the issues that has been raised is the new
process in which the FBI undertook the investigation in this
case against Mr. Scarfo's business.
Basically, the FBI used a new key logger system that is
calling into question--I guess I would frame this in the
perspective that this is the second time we have seen the FBI
in a court case on the violation of privacy. In fact, Justice
Scalia was quoted in the article basically saying, ``What
limits are there upon this power of technology to shrink the
realm of guaranteed privacy?,'' and that the court has to
confront this fundamental issue. So my question is, is it your
intention to make available the information about how this key
logger technology worked?
Mr. Mueller. I am not familiar with that new technology,
have not had occasion to use it in our district. I read the
same article that the Senator read with interest because it was
the first I had ever heard of it. Until I know more about it, I
really don't think I can commit one way or the other.
I do believe when there are advances in technology that it
is important to balance the privacy interests affected with the
investigative take that you might get from that technology. I
am not familiar with the circumstances of this case, and I am
not familiar with the technology.
Senator Cantwell. Well, given that there was a lot of
concern about the FBI's--what happens in searching for
information using the Carnivore system--is that so much
information is gathered. Now the FBI has switched to this key
logger system, and the public and the privacy advocates have
concern about what system is being used. When you say to
somebody you are collective every keystroke that was used this
by individual, (and maybe people are not very empathetic to Mr.
Scarfo's situation, but there might be somebody down the road
that they would be very empathetic) that every keystroke was
being tracked.
Do you plan to review Carnivore when you take over as FBI
Director?
Mr. Mueller. I have already had meetings with privacy
groups on it. I have, and will continue to look at it and
evaluate it and hope to, down the road, that the technology
overtakes the necessity for using it. I would make the point,
however, that----
Senator Cantwell. Would you undertake a formal review of
Carnivore?
Mr. Mueller. There has already been a--I would look at the
formal reviews that have already been done to determine whether
there is a necessity of doing another formal review. My
understanding is that the information that DCS-1000 is utilized
for is done generally, for the most part, and it may be as much
as 75 or 80 percent of the time, if not 90 percent of the time,
by the Internet service provider itself, which has that
technology. So that the DCS-1000 is for that particular smaller
ISP that does not have the technology and that every time that
it is used, and it has been used very seldom, I understand, it
is used pursuant to court order.
So there are protections, I believe, and likewise with the
logger system. I am not certain that it was--I am not certain
of the facts of the case, but I am more comfortable and would--
where there is the court that is directing the use of it and
supervising the use of the new technology, and I'm not certain
whether that was the case pursuant to, say, a search warrant in
the case that was reflected in the papers yesterday.
Senator Cantwell. Just as in wiretapping, I do not know
that it bothers the general public that the phone company has
access to the phone lines or that an Internet Service Provider
has access to that data. What they are very concerned about is
that a law enforcement agency might have free access to that
information and that it being collected, in a way that might
give them more information or information about other
individual that happen to have communicated. So I hope that
that review, whether formal or informal, is something, Mr.
Chairman, that this committee continues to be involved with the
FBI Director on.
Mr. Mueller. I am sorry, if I might, one last--I was passed
a note indicating that, and I was unaware of it, the DOJ is
conducting a review now which I certainly would look at once
the Department of Justice has completed its review.
Senator Cantwell. Thank you, Mr. Chairman.
Chairman Leahy. I think Senator Cantwell raises a very good
question. In an era of encryption, we do not want some of these
new technologies to be the back-door clipper chip that we have
already said we were opposed to. This committee was quite
concerned when Carnivore first came to our attention because we
felt that the FBI might be going well beyond what all of us
understood could be done under the law. We will look at how the
FBI uses the capabilities presented by new technologies.
But with some of the Fourth Amendment and other issues that
come up here, you should anticipate that there will be
increased oversight from the committee on these aspects and
increased concern, again, on both sides of the aisle. I
appreciate your answers here this morning.
Senator Kohl of Wisconsin?
Senator Kohl. Thank you, Mr. Chairman.
Good morning, Mr. Mueller. I believe that you are going to
make a fine Director of the FBI, and we all look forward to
working with you. I enjoyed meeting with you last week, and I
came away impressed by your command of the challenges facing
the Bureau.
In addition, your career demonstrates an impressive
commitment to public service and to your country. As you know,
the job ahead of you is a daunting one. A lot of ink has been
spilled cataloguing all of the problems with the FBI. You are
familiar with all of the criticism and the theories about what
has gone wrong and why, so there is really no need today to
repeat them, except to say that many of us are very concerned
that the public is losing faith in Federal law enforcement
because of these incidents.
But as you know, there is good news and bad news. The good
news is that within the FBI we still have the best crime-
solving agency in the world. When we discussed your plans for
the FBI, you commented that the core function of the Bureau has
always been, and remains, investigations. Despite the public
problems, the FBI's ability to conduct important investigations
is beyond questions, and you are right about that.
But the bad news is that the FBI has stumbled badly
recently. In a world where technology advances outpace law
enforcement, the FBI needs some forward thinking and planning.
We hope that you will give us some good concrete ideas about
how we can help the FBI stay one step ahead of emerging
threats.
I would like to ask you just a couple of questions, Mr.
Mueller. You have been responsible for managing offices of only
a few hundred employees and a budget of about $17 million. In
your new job, however, you will be in charge of an agency with
more than 27,000 employees and a budget of more than $3.5
billion. Now that is a pretty good increase over what you have
done before. You will be dealing with a big bureaucracy and
will not have the authority that people like CEOs have in the
private sector.
Given these constraints, do you think it is realistic, Mr.
Mueller, to expect big changes quickly?
Mr. Mueller. It is, as a number of people have pointed out,
a substantial undertaking. There have been a number of people
who have asked why I want to do the job because they perceive
it being somewhat substantial.
I do think that one can relatively quickly, over several
weeks/months, learn the institution and learn the people, learn
what are the larger problems, whether it be span of control,
what are the larger personnel problems and in a relatively
short period of time. And I don't want to specify any
particular period of time, but certainly within months start to
make substantial changes.
As I am want to say, the most critical decisions I will
make are the decisions on people--who one puts into positions
of leadership. And those changes take some time to, No. 1,
determine if there needs to be change, and, No. 2, if you are
going to change, who is the best person to fit a particular
slot, but that is not an extraordinarily time-consuming
undertaking.
On the other hand, changing the organizational structure,
making substantial changes to the span of control I think will
take additional time because I will want input. I will want
input from the management consultant firm that is looking at
the Bureau. I would want input from the various reviews that
are being done. And I am, as I mentioned to you, I want to go
out and talk to a number of people who have run organizations
of this size or larger and incorporate their views on how you
can best manage an organization like the FBI, and I do think
that will take a longer time than perhaps making some personnel
changes.
Senator Kohl. All right. There is the reality, as you know,
and also the perception. Sometimes the perception is just as
serious, in terms of the public out there throughout the
country, as the reality. In connection with that, I would like
to ask you this question:
Public institutions like the FBI and the Congress seem to
be held in lower esteem and are open to more criticism today
than at any time in the past. Americans know more about public
figures and the Government than ever before. Maybe that is
because 24-hour news coverage and multiple full-time news
stations turn every problem, oftentimes, into a huge scandal.
I do not want to imply that the issues we have been reading
about concerning the FBI are not extremely serious, but I am
willing to guess that today's FBI employees are every bit, if
not more, intelligent, qualified, and hardworking, in most
cases, than has ever been true before.
Mr. Mueller, it is hard to compare, but do you really think
the FBI is worse today than it has ever been or does the close
media scrutiny play a large part in the perception that the FBI
is broken and needs to be fixed?
Mr. Mueller. I don't believe the FBI is worse today than it
has ever been. The strength of the FBI is its people--the
special agents, the employees, the managers. And over the years
that I have been a prosecutor and worked together closely with
members of the FBI all I have seen is an enhancement in their
expertise, integrity, willingness to do the job, and there have
been a number of successes that I have mentioned yesterday and
would mention again. One is Pan Am 103--an unbelievable
undertaking by superb FBI agents and could not have been done
maybe 10 or 15 years ago because these agents had not only the
technology, I mean, the ability to pick a small piece of a
timer and put it into the puzzle of that prosecution was truly
remarkable.
And I have huge respect for, faith in the FBI agents with
whom I've worked and 99 percent of the FBI agents out there. I
think it is a wonderful institution. I think it has problems. I
think a number of those problems are attributable to disparate
factors and have to be addressed, the principal one perhaps
being that the FBI has grown over the years, but its management
structure has not grown to support it. The FBI has grown over
the years, but it support structure has not grown to support
it. The FBI agents have been--there have been more FBI agents
brought on to address particular problems, but the
technological infrastructure to assist them to do their job has
not been forthcoming, and that is what we hope to solve.
Senator Kohl. So do I hear you saying that you believe the
FBI is as effective and as dedicated as it has ever been
before? There are problems out there. Problems are magnified
sometimes, but there are problems out there, and they need the
kind of leadership that you hope to bring, not only in terms of
your ability to organize, and reorganize, and motivate, but
might I also suggest that they also need a leader who is
properly, in the best sense of the word, a cheerleader for the
fine and outstanding organization that it is and for the
service that it renders to this country?
Mr. Mueller. I wouldn't be sitting here, Senator, seeking
the job if I didn't think absolutely that.
Senator Kohl. Thank you. Mr. Mueller, you must be aware
that the Bureau requires that all agents' guns be stored with a
safety lock when they are not in use. Yet a recent consumer
study found that 30 out of 32 safety locks that are available
on the market failed the most basic safety tests. For example,
most of the locks fell off the guns when they were dropped or
were easily picked with basic items around the home.
Do you know whether the locks used by the FBI pass these
basic safety standards and would you agree that the FBI's
locks, as well as all of the locks that are available in the
marketplace, should pass these basic safety standards?
I do not know if you are familiar with what I am talking
about, but there is evidence out there, and it has been printed
in the newspaper, that 30 out of 32 of the basic safety locks
that are being sold do not pass safety standards. Are you
familiar with that?
Mr. Mueller. I am not familiar with this issue, but--I am
not, but I would be happy to answer whatever portions of the
question I can.
Senator Kohl. OK. Well, I guess I am asking you because
there is some difference out there in the marketplace. As a
matter of fact, I think even the President has been reluctant
to take up the suggestion that I am making, that all of the
safety locks that we sell out in the marketplace should pass
basic safety standards. As simple as that sounds, and I would
presume you would agree with that.
Mr. Mueller. I would have no reason to disagree with that
statement, Senator, but I must say that I am not familiar with
the issues relating to safety locks. I would hope that if the
FBI, and I don't know whether the FBI uses safety locks, but if
the FBI was using safety locks, I would want the FBI to have
safety locks that worked.
Senator Kohl. Yes, that is fine. I hope you do not get in
trouble.
[Laughter.]
Mr. Mueller. Unfortunately, given my ignorance, that is----
Senator Kohl. One last question. A particular concern in
Wisconsin that we discussed for a minute last week, I would
like to get just a public comment from you.
According to recent FBI statistics, Milwaukee has 50 less
agents than Charlotte, 23 less than Buffalo, and 20 less than
Indianapolis, which are cities with comparable or smaller
populations than Milwaukee. As a result, the number of FBI-led
arrests in Milwaukee lags far behind even much smaller cities,
despite the fact that Milwaukee has all of the same crime
problems of other major cities. And with our proximity to
Chicago, in particular, we are subject to their drugs and gang
problems as well.
As you said to me in the office, I would like to hear you
say it here, if I might, will you pledge to work to reevaluate
the FBI's allocation of resources--I am not asking for a
promise to move a certain number of agents by a certain time,
but rather that you give Wisconsin and Milwaukee a fair
evaluation and provide us with the resources as you determine
we deserve them.
Mr. Mueller. Yes, sir, I would absolutely do that. And I
did, in response to a question yesterday from Senator Sessions,
discuss the necessity for there being some flexibility on local
priorities vis-a-vis national priorities. And how that can be
worked into the system of allocation of priorities I am not,
myself, personally familiar, but it has been a concern of mine,
as a United States attorney, and will be a concern of mine
should I be confirmed as Director of the FBI.
Senator Kohl. I thank you. And, Mr. Mueller, you are a very
impressive man. I thought that when we met. I have continued to
feel that way. I have watched the proceedings here yesterday
and today, and you will have all of the support from my office
that you could ask for.
Mr. Mueller. Thank you, sir.
Senator Kohl. Mr. Chairman, thank you.
Chairman Leahy. Thank you, Senator Kohl.
As far as the question of trigger locks are concerned, I
have tried out some of the commercial ones--I own a number of
guns, as most Vermonters do--but I tried out a number of them
that do not work worth a hoot. I agree with you. If you are
using them, get some that work. I would suggest people, if they
are concerned, do what I do in my home. We have a steel gun
safe bolted to the floor, and everything is kept there and
locked up. It is also a recommendation I would make, though we
no longer have young children around, to anybody who has young
children.
You probably will not be required to carry a side arm in
your new position, but if you do, I would suggest the same
thing. The easiest thing to do is just have somewhere to lock
them up at home. In fact, in that regard, I would like to
revisit the issue of Attorney General Ashcroft's proposed
changes to the National Incident Criminal Background Check
System because Senator Schumer and Senator Feinstein raised
issues on that.
It is my understanding that the Attorney General proposed
these changes to address the privacy interests of law-abiding
firearm purchasers, but he still wants to meet the law
enforcement requirements of the Department. My further
understanding is the proposed regulations on background check
records would not impact on the retention of records, where a
person is denied approval under the NICS system. For example,
if the attempted purchaser has a criminal record or is under
age, then the record of that denial would be kept indefinitely
for law enforcement officers to investigate and prosecute as a
violation of the Brady law.
In addition, the proposed regulations would create a new
individual audit log for Federal firearm licensees. It would
allow the FBI to share NICS information on individual gun
dealers upon request of the ATF. The proposed regulations would
not change the existing NICS records retention requirements on
firearm dealers. In fact, ATF inspectors would use these
records and be kept on location at firearm dealers. They could
trace and investigate crime guns or guns used in a crime or
review for fraud during their inspections and so on. They could
still use the NICS transaction number in all background checks.
Now, I agree with Attorney General Ashcroft that we should
protect the privacy of law-abiding citizens. I am one, and a
lot of other people are. You fill out all of the forms if you
buy a gun, but you do not expect all that material, once they
have checked on you and find out you are law-abiding, you do
not expect the papers to be sitting around there forever. I
believe we need to maintain an accurate auditing system for
background checks, and I think we can do both and keep firearms
out of the hands of criminals and children.
So maybe the thing I might ask, I would just ask you to
work with members of this committee and the Attorney General to
ensure that the National Incident Criminal Background Check
System maintains an accurate auditing system, but also that we
protect the legitimate rights of gun owners. So I assume you
are perfectly willing to work with us on that.
Mr. Mueller. Absolutely.
Chairman Leahy. Another area, though, that is more apt to
have longer-range consequences is on some of our new search and
seizure procedures. The Supreme Court recently had occasion, as
you know, to look at the issue of thermal imaging under the
Fourth Amendment, where--for those not familiar with it--you
use devices outside of somebody's home, and basically what you
are doing is checking heat levels in the home. You can use it
to determine when somebody moves from room to room. In this
particular case, as I recall, it was checking to see whether
they had lights on that might be used to grow marijuana. But
the main point was somebody sat outside the home, looked inside
the home, and the Supreme Court felt that the procedures used
in that case did not fulfill the Fourth Amendment protections
and that there was not adequate basis for this search.
My guess is we are going to see more such issues because we
have new kinds of surveillance technologies. It is not like the
old days you had to look in a window or you had to get into the
house. Electronically, whether it is thermal imaging or whether
it is other types of surveillance, we are going to find things
that perhaps you or I would not even be able to anticipate
today.
Now, as a former prosecutor, I understand the benefits of
surveillance. In my career, we used surveillance a lot to catch
criminals. I am sure you have too. But we have also got to
protect America's sense of privacy. You can wiretap telephones,
but you have to follow very specific procedures to do that.
I would ask you to look at the procedures in place for law-
enforcement access, for example, to electronic information
because much of it is stored in the hands of third parties. I
think this has been touched on by some of the questions asked
here by Senator Cantwell and others. We live in an era where
privacy becomes less and less for a number of reasons. A lot of
the privacy we give up willingly, but I think we give up some
of it surprisingly, and I think Americans would be surprised to
know how little privacy they have in some areas. But I think we
should work closely together on this because my guess is the
courts will be looking at this more and more, as they should,
rightly should, to make sure that we are protected in the
electronic age.
So I would ask you to look at this issue, whether it is
keystroke surveillance, thermal imaging or how you deal with
the proliferation of companies that hold our data. This is
important because of our wide use of the Internet.
Mr. Mueller. I would be happy to look at that and work with
the committee on those significant issues. The use of the
thermal imaging system that was addressed by the Supreme Court
is one of those technological advances where ultimately law
enforcement needed guidance from the Supreme Court. It was not,
if I recall correctly, a unanimous decision.
Chairman Leahy. That is right.
Mr. Mueller. And it was a close issue. And there are going
to be those issues where there is a law-enforcement tool, there
are privacy interests implicated, and yet one doesn't know
where the line is. We do have to look at each of those issues
and be cognizant of the privacy interests involved.
It has been my habit in the past to sit down and listen to
and get the input from a number of different people with
different concerns, whether it be privacy interests or defense
counsel. And when concerns are expressed and we can address
those concerns, I would like to be responsive to those concerns
and do so without the necessity of perhaps going to a court or
a third party.
Certainly, I would be--look forward to sitting down and
working through some of these issues with the committee, as I
would with others who are interested in the development of that
new technology.
Chairman Leahy. And I am not suggesting, of course, by any
means that law enforcement become kind of Luddite. There are
going to be new technologies and they should be available, but
also within the constraints of what have been our search and
seizure law. I helped rewrite the wiretap laws. We came into a
digital age, and knowing that it is no longer the old age of
the sheriff standing on the roof of the pickup truck and
pinning the allegator clips to a telephone wire going through.
It is a far more complex thing today, and I think we worked out
something that reflected the appropriate balancing of
interests, and we can do that.
We are not trying to stop, neither you nor I want to stop,
new technology, but we also do not want intrusive technology
used without the appropriate privacy safeguards in place.
I see Senator Specter, and I assured him earlier that at
11:30 we would turn back to him. Then, if there are not other
Senators with questions, after Senator Specter is finished, we
will recess the hearing.
Senator Specter?
Senator Specter. Well, thank you very much, Mr. Chairman.
Thank you for stopping by this morning, Mr. Mueller, so we
could talk about some of the issues which we discussed
yesterday. We spent, as you know, the better part of an hour,
and I think we are pretty close together, but let us talk for a
few minutes on the record.
Mr. Mueller. Right.
Senator Specter. I had raised the issue of this memorandum,
dated December 9, 1996, where Director Freeh recounts a meeting
between a top FBI official, Mr. Esposito, and a top Department
of Justice official, Mr. Lee Radek. And the key part of the
memorandum contained the language that Mr. Radek commented to
Mr. Esposito that there was a lot of ``pressure'' on him, Mr.
Radek, and the Public Integrity Section regarding the
Democratic National Campaign Finance investigation because
``the Attorney General's job might hang in the balance,'' or
words to that effect.
And where we ended up yesterday was on the point as to the
status of congressional oversight, and we were talking about
whether the FBI Director should have turned it over to at least
the chairman and ranking member of Judiciary. And he had said
that the Director ought to take it up first with the Attorney
General, and I would agree with that totally, but if the
Attorney General then disagreed about its being turned over to
the Judiciary Committee, it seemed to me that the FBI Director
had a duty to do that. The FBI Director is in a very unique
position, having a 10-year statutory term.
And this memorandum was written at a time when there was an
outstanding question as to whether Attorney General Reno would
have been reappointed by President Clinton to be Attorney
General for a second term. And had the Judiciary Committee and
Congress known about Mr. Radek's position, it might have had a
very profound influence on the appointment of independent
counsel--any suggestion that there was a decision based, in
part, on the Attorney General's status.
And I think when we talked this morning you concurred--you
will say it yourself in a moment--on separation of powers, that
Congress does have a right to know about a matter of this
importance, after the Director has run up the chain of command
to the Attorney General, if there is not agreement to turn it
over, that there would be a duty by the Director to turn it
over for Judiciary Committee oversight.
Is that fairly accurate?
Mr. Mueller. I think, Senator, I believe there may be
occasions, and it is hard on this with just fact specific. But
there are occasions where if I thought that an investigation
was being interfered with, hampered, for political reasons or
other reasons, in an unwarranted way, I think my obligation
would be to speak closely to--talk to the Attorney General
about that, and ask the Attorney General to turnover whatever
was either responsive or important to the Congress to do its
duty. And if it was a matter of substantial consequence, and I
was turned down by the FBI--not by the FBI--was turned down by
the Attorney General, I would have options on hopefully where
to go with that, but I would think I'd have an obligation to
inform the Senate of that, and produce those documents.
Senator Specter. Thank you for that response, Mr. Mueller,
because I think this is one of those really extraordinary
examples where congressional oversight would have been
extraordinarily important, and I am glad that we have come to a
meeting of the minds on that.
We then discussed this morning at some length the business
about having records turned over to the Judiciary Committee.
And I gave you a copy of a draft report on Wen Ho Lee that our
subcommittee had prepared, and I appreciated your reviewing
that very extensive document, running some 185 pages. And the
Wen Ho Lee case was a matter of, I think, compounding errors.
There was a request for a warrant under the Foreign
Intelligence Surveillance Act, where the FBI Director sent a
top official to talk to the Attorney General, and the Attorney
General delegated it, and then the FISA warrant was rejected,
and there was not a followup either by the Attorney General or
the FBI Director, and we have since legislated on the subject
that when the FBI Director asks the Attorney General a matter
of that sort, there has to be a response in writing by the
Attorney General, and the FBI Director has a statutory
obligation to followup.
The Wen Ho Lee investigation then languished for about 14
months until November or December 1998, and at that time, with
the Cox Commission about ready to come out with a report, the
Secretary of Energy Richardson, then acted in a hasty manner, I
think precipitously, had a lie detector test given to Wen Ho
Lee by a private agency, a dispute as to what that showed, and
then a failure of the FBI to move Wen Ho Lee away from access
to confidential documents, and finally a search warrant in
April 1999, and then no activity against Wen Ho Lee until
December when he was arrested. And we still have not had a
chronology as to exactly what the FBI and the Department of
Justice and the Department of Energy did in that intervening
time. It seems to me extraordinary that he would be at liberty
for all that time, April to December, and then manacled and put
in solitary confinement. And then we could not get any records
because the matter was under investigation, prosecution,
continuing investigation, but principally prosecution, and then
a guilty plea taken to only one count of a 59-count indictment.
And that illustrated the necessity for oversight, and I had
read you the Congressional Research Report, and I want to go
over that with you for just a minute here. The part first where
Congressional Research says, quote, ``demonstrates that the
Department of Justice has been consistently obliged to submit
to congressional oversight, regardless of whether litigation is
pending, so that the Congress is not delayed unduly in
investigating misfeasance, malfeasance or maladministration in
DOJ or elsewhere,'' close quote, so that even if there is a
pending prosecution, congressional oversight has standing and
can get information, and we talked about the one exception,
which I concurred with you, if there is a executive privilege,
not a matter of co-equal branches, that is a matter for the
Judiciary to conclude. But I wanted to get your record comment
as to the appropriateness of congressional oversight even if
there is a pending prosecution or a pending investigation.
Mr. Mueller. I think I would say that yes, congressional
oversight is appropriate, even if there is a pending
prosecution or investigation. And I think it incumbent upon the
executive to attempt to accommodate the request of the
oversight committee, absolutely. And I think each situation has
to be addressed. It may be a very important one, it may be not
so important. Each situation one has to look to, and it is
incumbent upon us to attempt to accommodate the necessity of
the oversight committee to have the information it needs. And
one of the factors may well be that there is an ongoing
prosecution or investigation, but we have an obligation to
accommodate in what ways we can.
Senator Specter. The Congressional Research memorandum then
covered a point of significance when it stated, quote, ``In all
instance, investigating committees were provided with documents
respecting open or closed cases that included prosecutorial
memoranda, FBI investigative reports, summaries of FBI
interviews memoranda.'' Again, I think we are of a same mind,
that that is an appropriate function for congressional
oversight?
Mr. Mueller. Well, I note that they comment about what has
been done in the past. I guess I am not certain about
specifically what the question is.
Senator Specter. Well, the question is, would you agree
with the Congressional Research conclusion that congressional
oversight is appropriate to be provided with documents
respecting, quote, ``open or closed cases that included
prosecutorial memoranda, FBI investigative reports, summaries
of FBI interviews and memoranda.''
Mr. Mueller. In appropriate cases, absolutely.
Senator Specter. Well----
Mr. Mueller. And I have had occasion myself to be in a
position of accommodating a committee of Congress, who asked
for many of those same things, and, yes, in appropriate cases.
My concern is making an overall generalization that in every
case this should be the way that we intersect in terms of
responding to legitimate oversight of committees.
Senator Specter. Well, you used the word ``appropriate''
twice, and I would agree with you that Congress has a
responsibility to proceed in a rational way with a purposeful
request. The Congress--and you and I talked about this this
morning at some length--I believe under the law has the last
word. If a prosecution is to be prejudiced, the law is, as I
understand it, that Congress has the last word. And if Congress
has the responsibility for legislation and you get involved in
some complex matters, but if it is pressed all the way, we
talked about the possibility of a member being under
investigation, and there you might have to go to the Speaker or
the majority leader, the congressional oversight might have to
be redefined. But I just want to establish that you concur that
Congress does have the last word on congressional oversight,
absent executive privilege.
Mr. Mueller. Well, it's the assertion of executive
privilege, yes. And the ultimate arbiter, when there is a clash
or disagreement between the executive and the legislative, I
believe the courts are the final arbiters of that, and I think
I mentioned the American Tel and Tel case, in which it
specifically describes the balance between the two co-existent
branches of--co-equal branches of government, Congress and the
executive, and encourages accommodation. And I would hope that
we would never get to the point where the--where the senator or
the committee would say, ``We have the last word.'' I would
hope to be able to accommodate you so that we never reach the
point that requires either the executive or the senate to go
and seek the advice of a court.
Senator Specter. Well, I would hope we would too, and I
think we will be, but in the Wen Ho Lee case we had that
extraordinary circumstance, and we did not get the documents.
And the case went downhill all the way. And I think
congressional oversight can be of help, as you and I discussed
today.
Let me turn to--would you like me to conclude, Mr.
Chairman, and come back for another round? I have just a few
more minutes. I know Senator Durbin is here.
Chairman Leahy. I want to accommodate both because I think
we can finish this whole thing before the noon caucuses, and
Senator Durbin, what is your schedule? I have also told the
Senator from Pennsylvania I would accommodate him as much as
needed, because I thought he had important questions.
Senator Durbin. I promise to be very brief.
Chairman Leahy. I wonder if the Senator from Pennsylvania
would mind doing this, yield to----
Senator Specter. I would be glad to.
Chairman Leahy.--Senator Durbin for his questions, and then
go immediately back to you.
Senator Specter. I would be glad to, Mr. Chairman,
certainly.
Senator Durbin. Thank you very much, and Mr. Mueller, thank
you for coming, and submitting yourself to this humbling
process. And I am very impressed with your credentials, and I
am certain that I speak for the vast majority of senators,
Democrat and Republican. We feel that you are the right person
for the job, and it is a big job. We met in my office to talk
about some aspects of it, and in a very brief time, I was
impressed by your candor and your insight.
I would like to address an issue, which no one, as the head
of any agency, would readily invite questions on, but one I
think is inevitable. And that is this whole question of the
Inspector General. There are some 57 Federal agencies with an
Inspector General on board. This person is really a watchdog, I
am sure a pain in the neck for the directors and secretaries
who are being subject to their inspection, and yet I think an
important part of the process, because as I view it, each of
these Inspectors General, tries to take a detached view of the
agency and its management, and then come to Congress and make a
report as to what they consider to be shortcomings, whether it
is something very serious or something just at a managerial
level. But it has created a counterbalance to many of these
departments and their people who are leading them.
I think, as I review this, that the Federal Bureau of
Investigation tried throughout its history to avoid political
contact and political involvement, the feeling being, under Mr.
Hoover and some others, that as long as they were separate and
apart and not subject to political influence, they would be far
more professional in their conduct. As a consequence, a
fortress mentality emerged at the FBI that really separated
them from the political process.
Several years ago my colleague from Pennsylvania, Senator
Specter, raised this whole possibility of an Inspector General
at the FBI. It is a thing that I started looking into, and
Senator Specter was kind enough to co-sponsor legislation with
me for the creation of a separate Inspector General.
I might add that in the Treasury Department, the IRS has
its separate Inspector General, in addition to the IG for the
Department of the Treasury.
What is your thinking about, I mean, in terms of whether or
not the FBI should have a separate Inspector General or some
other approach that could give Congress the assurance that even
with the best of your management, that agency will be subject
to the same type of scrutiny that 57 other Federal agencies
face?
Mr. Mueller. The FBI has its own Office of Professional
Responsibility for--and as I'm sure the Senator is aware, last
week or the week before, the Attorney General relaxed whatever
remaining restrictions there were on the IG's--the DOJ IG's
ability to undertake investigations of the FBI, and
consequently, I see the Inspector General from the Department
of Justice working very closely with the FBI Office of
Professional Responsibility to allocate responsibilities.
If I were the Attorney General I might have some concern
about a separate Inspector General feeding the perception that
the FBI was a separate institution accountable only to itself.
And I'm not certain I my own mind whether or not what the
accountability you seek cannot be discharged by an Inspector
General with appropriate personnel in the Department of
Justice, as opposed to establishing another Inspector General
in the FBI.
Senator Durbin. Well, as much pride as I have in
authorship, I am trying to achieve a goal, and let me ask you
if that goal might be achieved by changing the relationship
between the Inspector General for the Department of Justice and
the FBI as an agency, because the current--I should not say the
current--but historically, that Inspector General appears to
have been waved off, or at least shunned, when it came to the
kind of inspection that we would demand in virtually every
other agency. So I am asking you a pretty tough thing here. You
want to be the Director of the FBI and manage the agency, and I
am asking you what steps will you take then to assure me or
other members of the committee and Congress, that there will be
a healthy relationship with an Inspector General who is part
and parcel of the management of the FBI?
Mr. Mueller. Me, I can assure you that I believe that for
instance I should have weekly, if not weekly, every other week
meetings with the Inspector General to review the cases, in the
same way that the Attorney General meets with the Inspector
General. I think there ought to be a close relationship. I will
say that I am not certain that the FBI would say that the
Inspector General has been waved off in the past. The Inspector
General in the Bureau has done--not in the Bureau--but the
Inspector General in the Department of Justice has undertaken
some wide-ranging and thorough investigations of the FBI. To
the extent that the Inspector General in the past was hampered
by having to go to the Attorney General and specifically
requesting authority, that has been removed.
So I do believe that if there is an instance of--which the
Inspector General believes needs to be investigated in the FBI,
there are no longer any constraints on that Inspector General's
ability to do that.
Senator Durbin. I think there are two things that are
playing against your conclusion. The first is this historic
feeling that the FBI is a different agency, the FBI is not
going to be subject to the same level of scrutiny and
inspection as other agencies of the government, and I hope you
agree with me that that attitude has to change.
Second, we have cut the resources for the Inspector
General's Office in the Department of Justice, as we have
dramatically increased the number of employees in that
department. So as we have given more and more responsibilities
to the Department of Justice, the Inspector General has not
kept up with personnel to be able to take assignments, whether
it is with the FBI or other agencies. So that is a funding
issue that we need to address in Congress, but I hope one you
will be sensitive to.
I do not know what my time situation here is, but I want to
just, if I can, touch briefly on two other issues. And one I
raise with virtually everyone who comes before us in the field
of law enforcement. That is the issue of racial profiling. And
I have been heartened by the comments made by Attorney General
Ashcroft, as well as every other person that has come before us
as part of his administration, that they are bound and
determined to do something about racial profiling. I think that
is absolutely essential, and it should not be partisan at all.
This is something as a Nation that we should make as our goal
to end that sort of thing.
And yet, let me just draw, as I did with Congressman
Hutchinson the other day, this one statistic, set of statistics
to your attention. It is, 12 percent of the American population
are African-American. The Director of Drug Control Policy, has
said in the past, General McCaffrey, that 13 percent of the
drug users in America are African-American. 12 percent
population, 13 percent of the drug users are African-American.
And yet despite this, 35 percent of those arrested for drug
possession are African-American. 55 percent of those convicted
for drug possession are African-American. And over 60 percent
of those incarcerated are African-American. The statistics are
equally compelling when it comes to those of Hispanic descent
in terms of incarceration all the way through the process.
The reality is there is a racial disparity in our country's
criminal justice system. Despite the fact that five times as
many whites use drugs as African-Americans, you could never
tell it from the prison population. This is something we all
have a responsibility to be sensitized to. Do you acknowledge
this? And if so, what do you hope to do about it?
Mr. Mueller. Well, I acknowledge that racial profiling is
abhorrent to the Constitution, it is abhorrent in any way,
shape or form. And I would make certain that from the first day
an FBI agent sets foot in the academy in Quantico that that
refrain is repeated as part of the training, and as one goes
through the ranks, continuous retraining, and focus on the fact
that the FBI, in order to be the preeminent law enforcement
organization in the country if not in the world, has to have a
unblemished record with regard to addressing and strongly
attacking any indication of racial profiling.
The FBI has the responsibility of enforcing the civil
rights of this country, and it cannot do so effectively,
efficiently and with the credibility of the American people, if
it itself is not absolutely the example of law enforcement in
this area.
Senator Durbin. Then let me ask you, as my last question,
on the promotion of diversity within the FBI, do you feel that
the FBI employment level now, in terms of minority employment,
is reflective of America?
Mr. Mueller. I am not that familiar with it, but let me
just say this. I believe that we have to make every effort to
recruit from the diverse areas of our society, and we ought to
make every effort we can to make certain that the FBI, through
all the ranks, reflects the diversity in our society.
Senator Durbin. I give you these statistics, and let me say
Congress has--my office, all of us, have the same
responsibility that I am asking of you at the FBI, just so we
can use it as a point of reference if there are future hearings
on how we are doing, what progress we are making. In 1997 at
the FBI, all minorities combined accounted for 15.3 percent of
all FBI special agents; 5.6 percent African-Americans, 6.9
percent Hispanic, and 2.2 percent Asian, the rest, 84.7, were
white.
As of the 2000 census the numbers indicate that African-
Americans represent 13 percent of our Nation's population, 5.6
percent of the special agents at the FBI; Hispanic-Americans 13
percent of the population, 6.9 percent of the agents at the
FBI; and Asian-Americans close to 4 percent, while 2.2 percent
are agents at the FBI. So clearly, when we are dealing with the
issue of racial profiling and promoting diversity, all of us,
including the FBI, I hope will be more sensitive to recruiting
and training and retaining minorities who can really help to
give us that kind of balance. I hope you would agree with that.
Mr. Mueller. I agree with that.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Let Senator Specter, who yielded for
Senator Durbin, let him finish his questions, go to Senator
Biden, if that is all right.
Senator Biden. Go to me now, Mr. Chairman?
Chairman Leahy. Well, Senator Specter has a few more
minutes to finish his questions, is my understanding. Am I
correct?
Senator Specter. Mr. Chairman, I think I can finish them in
another 10-minute round.
Chairman Leahy. Why don't we--if Senator Biden has----
Senator Biden. No, I will just submit my questions. And I
have to leave. I will be happy to submit them.
Senator Specter. Well, let me yield to Senator Biden since
he has to leave.
Chairman Leahy. OK.
Senator Biden. I would ask unanimous consent that my
statement be placed in the record, and I will just ask two very
brief questions and submit a copy.
Chairman Leahy. And I would note also for the record, all
statements anybody wants to submit, the record will be kept
open for that and for further questions.
Senator Biden. One of the things that happens, as you know,
Mr. Mueller, is when things start going wrong, they all go
wrong. And although I think the FBI--I know the FBI has made
some serious mistakes, and you and I had a very long discussion
in my office about what I privately thought--presumptuous of
me, but after doing for 28 years, what I thought you were about
to face as the Director.
I think it should be stated, which is obvious and I am sure
everybody agrees, that the vast majority of the FBI agents, the
overwhelming majority of the FBI agents--overwhelming--are
among the most honorable women and men I have ever encountered
in public life. And up until very recently, it has been the
standard to which every other law enforcement agency in the
world has prepared. In the world. And so one of the reasons for
my disappointment is I am such a big fan. I have in year before
when I chaired this committee, I don't think it is an
exaggeration to say one of the reasons why the FBI's budget is
what it is, I will bet you that 50 percent of the reason
occurred on my watch, opposed by Presidents of the United
States at the time.
So I think you are going to--anything that isn't working
right in law enforcement, whether or not you are responsible
for it, you are going to be held responsible for it. I figure
you have already figured that out by now.
Mr. Mueller. I understand that.
Senator Biden. But I hope we keep a balance here. There
needs to be, in my humble opinion, a greater balance and a
little injection of reality into the FBI right now, but the
place from which you come as U.S. Attorney dealing with the FBI
and with local law enforcement I hope will equip you with some
ballast here.
I have two points and questions that I want to ask. I have
been disturbed for years since I have in large part, to my
discredit in some cases, been responsible for most of the major
drug legislation that we have on the books, including one I
have been trying to correct for over 17 years--that is not
true--yes, about 17--about 13 years, that Senator Moynihan and
I, neither of whom have ever been accused of being insensitive
to racial issues, both of which have come from--in my case,
from the civil rights side of the agenda. We're the guys that
wrote the crack cocaine legislation because we were told by all
the medical experts at the time that this epidemic which, in
the early 1980's, Moynihan predicted was coming from the
Bahamas and no one would pay attention to it. The Center for
Disease Control wouldn't focus on it. The agencies wouldn't
focus on it. Nobody focused on it.
Prior to that, it used to be for every one woman that was
addicted to drugs, there were four men. Crack cocaine became
the great equalizer, responsible for the spread of AIDS in a
whole range of ways because women were prostituted in order to
continue to have their daily hits, and sometimes 20, 24 hits a
day.
And so we passed this law putting the minimum mandatory for
crack cocaine. A white kid out in suburbia in a $400,000 home
doing a line of cocaine at night with his father or with his
friends or by himself, if caught, would not go to jail, but the
21-year-old who got picked up for crack cocaine on the corner
got 5 years. And we have been trying to change that in the
Sentencing Commission for years. As a matter of fact, one of
the people I recommended to be the Chairman, a Scrantonian, an
acquaintance and friend of the Senator from Pennsylvania, wrote
a report urging us to rectify this at one time a 100-to-1
disparity that existed.
I would ask you to take a look at--even though you are not
the drug director and you are not DEA, but your voice will be
listened to as FBI Director--this racial disparity in the
context of a couple specific things, one of which is the degree
to which crack cocaine is responsible for the number of
African-Americans and Hispanic Americans, minorities in jail.
It is a much easier hit. It is a much easier hit for the police
department. I am not criticizing them. You know, they see it in
the street. A transaction takes place in the street. They
arrest in the street, and mandatory sentencing, jail.
And the second thing I would ask you to take a look at,
because I am asking the DEA to take a look at it as well--and I
will ask Mr. Walters when he comes before us when I hold his
hearing--the chairman has asked me to hold his hearing--is the
second piece. Although there is a 13-percent usage rate among
African-Americans comprising 12 percent of the population and
in many cases up to 60 percent of the folks in jail, that on
its face is a glaring disparity. And I am sure not a small part
of it relates to racial disparity.
But one of the things that has been proffered--and I want
to know what the answer is. I don't expect you to know it--is
the degree to which African-Americans arrested for a drug
charge resulting in jail relates to trafficking as opposed to
consuming. Are you with me?
Mr. Mueller. I am with you.
Senator Biden. Because a lot of the younger people used in
this business by white organizations--it doesn't have to be a
black organization--are African-American youth and African-
American young men.
I don't know what the numbers are. All you got to do is go
down Aramingo Avenue in Philadelphia and find out where most of
the money is going. It is not going into the hands of black
organized crime units. It is going into the hands of other
units, but you will see an awful lot of African-Americans being
used, in the literal sense used. So I would like to know at
some point and ask you to think about in a coordinated effort
with your counterpart at DEA to take a look at that to see what
this--because the most important thing for us to do to get this
whole question of racial profiling and then in my view racial
disparity across the board into focus is to have the hard facts
as best we can accomplish them.
So I would ask if you would be willing--I am not asking you
to be responsible for it, but I am asking you if you would be
willing to join with DEA and join with the national drug
director to take a look at that.
Mr. Mueller. Yes, Senator, absolutely.
Senator Biden. Now, the second and last question that I
have for you is that I am of the view--and, again, you know,
sometimes when you work very hard on something and you get it
passed and it takes years to do it, you very much as a
legislator want to be convinced it worked. You want to be
convinced all your hard work really meant something. Sometimes
we are just dead wrong. At least I am. Sometimes I work on a
piece of legislation that I help pass or am responsible
primarily for getting the attention of my colleagues and
getting it passed, and it turns out not to be as efficacious as
I thought it was going to be. And I have tried in my career to
acknowledge what doesn't work, whether it was the Violence
Against Women Act, when we back and looked at it to see what
worked and what didn't work, jettison what didn't work and add
to what you needed to do.
And that takes me to the local COPS program, and my
question is: You having worked as a U.S. Attorney have worked
with local law enforcement. How critical do you believe to the
FBI is genuine cooperation and sufficient staffing and
expertise at the local level to you being able to carry out
your charge as Director of the FBI? In other words, how
important are local cops?
Mr. Mueller. The job cannot be done without a close working
relationship with local police officers. As I said in my
statement, local police officers are the backbone of law
enforcement in this country, State and local police officers.
And to the extent that we hope to have any successes--and if
you look at the successes we have had in terrorist cases or
white-collar crime cases or violent crime cases, more often
than not the success will be a joint effort of State and local
working with the FBI, where the FBI has expertise perhaps and
some talents to bring to the table, but the knowledge of the
community, the knowledge of the streets, the interrogation or
the interviewing techniques of the State and locals are
absolutely critically important to the completion of the
investigation and the successful prosecution.
Senator Biden. Mr. Chairman, thank you very much. I would
like to end on a positive note here, from my perspective,
anyway. Having had oversight over the FBI or been part of the
oversight process for 26 years, there is one very good thing
that has happened to the FBI, and it is better today than it
ever was, and that is the coordination with local law
enforcement. I would argue that that one factor is one of the
most significant factors in dealing with the reduction of
violent crime in America than anything else. So for all the
things you are not doing, I would argue that the Bureau has
done that pretty well.
And, I ask my colleagues, just check with your local
police. It used to be when you would say, ``I am bringing in
the FBI, Senator Biden, I am going to get the FBI to come help
you,'' it was similar to saying, you know, ``I am from the
Federal Government, I am here to help.''
Today, I get asked. Today, they want it. Today, the
relationship seems, at least in my personal experience, to be
working very well. I hope you keep it up. I am sure you will.
I thank you, Mr. Chairman. I thank my friend from
Pennsylvania.
Chairman Leahy. I would note that this is not always what
you hear from local police, and it is, though, the goal to
reach, and there are some significant areas of improvement.
Some of the smaller law enforcement agencies will still want to
be heard.
Senator Specter, you have been waiting patiently.
Senator Specter. Thank you, Mr. Chairman. I would like to
associate myself with Senator Biden's comments, especially the
one about crack cocaine, and acknowledge his leadership as
chairman. I would associate myself, I think, with all of his
comments except for the opening statement that he had only had
two brief questions.
[Laughter.]
Senator Biden. The questions were brief. The statements
were long.
Senator Specter. But I am always glad to defer to Joe
Biden.
Mr. Mueller, on the issue of what you are going to do,
computerization or whatever the techniques are to get the
records produced, how will you tackle that specifically? And
let me give you just one illustration of what happened at Waco,
April 1993, and it wasn't disclosed until August 1999 that
there were records about the pyrotechnics, the devices which
were incendiary. The other aspect of that matter is that when
Attorney General Reno and FBI Director Freeh testified before a
House committee, there was an FBI agent present who knew there
were pyrotechnics used and did not correct the testimony of the
Attorney General or the FBI Director or tell them that they
were incorrect when they said there were no pyrotechnics. So it
is a two-part question.
First, how do you deal with the mechanization of the FBI to
be sure that you will have those kinds of records available in
a timely way? This goes to McVeigh and many, many other lives.
Mr. Mueller. Well, two things. Actually, the platform for
making records readily available, as most law firms would see
now, is the imaging of documents and coding of documents and
easy retrieval from a data base. If, for instance, you had all
the documents relating to Waco in a data base that had been--
where they had been imaged, and once they had been scanned,
even read it, you could run a search on pyrotechnic and find
every document in which that word appears. And so if there is
an issue, a question about were pyrotechnics used, you don't
have to go through 10,000 documents, track down 4, 5, 10, 15,
50 FBI agents to determine whether or not they were used.
Senator Specter. But suppose you don't know the word or you
don't have a reason to think pyrotechnics were used. It is just
a matter of having the relevant records available that happened
in Waco in April 1993.
Mr. Mueller. Well, you can do any number of searches to
pull out that which is more specific. I mean, the
computerization of records today would be exceptionally helpful
in responding, I think, to the requests, specific requests of
Congress.
Going to the point about not correcting the testimony,
quite obviously, if there is some error on testimony, it should
be corrected immediately. If there was--as a result of a
mistake, if I make a mistake here, and somebody--I walk out in
the hall and somebody says, Now, Mr. Mueller, you told the
Senate committee ``x,'' I think if you look at this document it
is ``y,'' then I have got an obligation as soon as possible to
rectify that mistake and to explain to you why it was made.
Senator Specter. Well, in the absence of correcting the
mistake--and we covered this on Ruby Ridge--where matters are
not disclosed, what is your response going to be when somebody
deliberately does not correct a mistake or deliberately does
not disclose important information as it appears in Ruby Ridge?
Mr. Mueller. There are a range of sanctions, and I would
take action, absolutely. I mean, the bedrock principle for the
Bureau has to be candor and truthfulness, whether it be in
response to oversight, whether it be in response to Assistant
United States Attorneys, whether it be in response to defense
counsel, with the structure itself.
Senator Specter. What kind of action?
Mr. Mueller. It depends on the circumstance. I mean,
anybody that lies, absolutely anybody who lies deserves the
strongest sanction, up to and including a dismissal from the
FBI.
Senator Specter. Mr. Mueller, the Hanssen case is an
illustration, along with Aldrich Ames, of very, very enormous
damage done. I chaired the Intelligence Committee at a time
when Aldrich Ames was detected. And the CIA Inspector General,
Fred Hitts, testified before the Intelligence Committee as
follows: ``Although we found no reason to believe that the
Directors of Central Intelligence who served during the
relevant period were aware of the specific deficiencies
described in the special assessment, I believe Directors of
Central Intelligence are obligated to ensure that they are
knowledgeable of significant developments related to crucial
agency missions.''
Now, this has been interpreted, when he used the word
``ensure,'' that there was absolute liability on the Directors.
And there was a very heated reply given by the former
Directors--Director Gates, Director Webster, and Director
Woolsey--that it was unfair to hold them responsible when they
did not know about Ames or have reason to know. And the thrust
of Inspector General Hitts' point was that when you are dealing
with national security, it is incumbent upon the Director to
take whatever action is necessary to find out, and that when it
was a matter of that magnitude, it is not sufficient that he
didn't know or have reason to know that he has an obligation to
find out.
Now, that is a pretty tough standard, but do you think it
is appropriate?
Mr. Mueller. I can't speak to the circumstances of that
exchange. What I can tell you, Senator, is that I believe
anything that happens or does not happen in the Bureau, should
I be confirmed, is my responsibility. If I did not assure that
there is sufficient security for the computers, to assure that
there is no additional Hanssen, then that is my responsibility.
I need to learn the institution from top to bottom because I am
going to be responsible for that which does happen and that
which does not happen within that institution.
Senator Specter. Well, responsibility and accountability
are words that you can articulate, but CIA Inspector General
Hitts imposed a very tough obligation. I think it would be
applicable both to the FBI Director and the CIA Director, that
when you are dealing with a Hanssen or you are dealing with an
Ames, you have got a duty to find out. And I don't know quite
how you discharge that duty, but it is a very, very heavy
burden, which I think someone who is the Director of the FBI
has.
Let me go on to two other very brief questions, Mr.
Mueller. One is--and I discussed this with you--that I hear
complaints from time to time, too frequently, about FBI agents
asking someone who has been arrested against whom the Federal
Government has a case if they have some information about some
other person who is a public figure, with the suggestion that
the case against the individual under arrest will go easier if
that individual is able to target and identify somebody who is
well known.
This is not a situation where there is a question of a co-
conspirator to implicate somebody else where there is a
predicate to believe is involved in a matter, but just somebody
out of the blue, the person under arrest against whom a case is
built knows X, who is a prominent person. Obviously that is a
very, very bad tactic.
What can be done by the Director to preclude that sort of
thing being done?
Mr. Mueller. I must say, Senator, in all the years I've
worked with the FBI, I've never seen an occurrence of that. And
if that--I will tell you that I think there are precautions
within the system to assure that that is very, very--well,
very, very rare circumstance because if somebody is indicated,
the conversations generally with the cooperators come out in
trial, as well they should. But that, a general targeting,
without predication, is anathema to the Bureau, and to the
extent that any incident such as that comes to the attention of
the Director, it should be dealt with firmly.
Senator Specter. My final question, Mr. Mueller, is about
FBI leaks, and I wrote to FBI Director Freeh on June 8th this
year asking, saying, ``I am interested to know whether you have
initiated any investigation on the leaks which have appeared in
the press concerning an alleged investigation of Senator Robert
Torricelli, and if so, what that investigation has disclosed.''
And I have had no response. I would like to have that made a
part of the record, Mr. Chairman.
Chairman Leahy. It will be.
In fact, I should note that also Senator Feinstein and I
along with the Senator from Pennsylvania have asked similar
questions, and my recollection is we have not gotten an answer
either.
Senator Specter. Well, I was told--and I wasn't here for
the entire sessions, had other obligations--that the question
about Senator Torricelli had not been asked. But what do you
think about that and what action can the FBI Director take to
try to preclude these leaks which are so prevalent?
Mr. Mueller. Generally speaking--not being familiar with
that, the facts of that particular investigation, but generally
speaking, I abhor leaks. They are detrimental to the mission of
the FBI. They are detrimental to most particularly the
individual who is the subject of them. I think you set a
standard of very harsh treatment when an investigation is
conducted and somebody is determined, has been determined to
have leaked.
I know that in the 3 years I have been U.S. Attorney in San
Francisco, I believe we developed a reputation as an office in
working closely with the FBI of not countenancing leaks in any
way, shape, or form on ongoing investigations and being
scrupulously careful to assure that any public statements that
are made are made at the appropriate time and with the
appropriate information as that is allowed under the
regulations put out by the Department of Justice. And I will do
everything in my power to assure that those regulations are
abided by and that any breach of those regulations is treated
firmly.
Senator Specter. As I say, I don't know what was done. All
I know about the Senator Torricelli matter is what I have read
in the papers myself. But I did not know whether the FBI has
conducted any inquiry. But, if confirmed, will you conduct an
inquiry on those leaks?
Mr. Mueller. I will look at it to determine whether there
is predication. If predication for that, absolutely, I will
conduct an inquiry.
Senator Specter. Thank you. Thank you very much, Mr.
Mueller, for being so forthcoming.
Mr. Mueller. Thank you, sir.
Senator Specter. Thank you, Mr. Chairman.
Chairman Leahy. I thank the Senator from Pennsylvania both
for rearranging his schedule yesterday and again today to come
back and wrap this up.
I will close with this. The question you asked on leaks is
one that bothers me. I look at cases like Wen Ho Lee, which
Senator Specter has talked about; Richard Jewell, who was
announced to the public--I mean, the public just assumed he had
tried to blow up the Olympics because the FBI leaks and stories
that came out. Tom Stewart, who was a decorated Navy flier and
investment banker, who won last year a $6 million settlement
against the FBI because the agency leaked false and damaging
information against him.
Not only is this wrong, but the three of us know as
prosecutors, if you are doing it against the wrong person, it
takes attention away from who is the real person. Everybody is
focusing on the wrong person, and the real culprit might escape
detection.
So I would ask you to move this into a real priority. They
are getting too much the idea that the ``guilty accused,'' as
somebody once said, but that is not the way our Constitution
is. People's names and reputations can be ruined. You can
imagine if you own a small business and all of a sudden it is
announced, well, the FBI is looking at You. You know what that
does. And the smaller the area, the harder it is.
I will also put a number of questions in the record,
primarily on some management issues. Because I am putting them
in the record, I would not want you to think that they are not
of significance to me. They are on everything from how the IG
works to how people are disciplined. I would like you to look
at them, and I would like a response. Obviously we are not
going to delay things for such responses because I don't want a
quick and easy response. I want you to have time to do it.
I will put this nomination on the agenda for our exec
meeting on Thursday of this week. I think you understand from
what you have heard from this committee how the committee will
vote. But I hope you also understand that, in doing that--and
this is probably as diverse a group of Senators as you are
going to see here in the Senate--that we are putting a lot of
faith in you and a lot of hope in you as Americans and as U.S.
Senators. We all share the same goals for our country, and you
are given one of the most crucial places to fulfill those
goals, because what we are saying is what 250 million other
Americans would say. You have got to be our chief law
enforcement officer of the FBI. You have got to set the
standard for everybody else. I think you know how in small
States like mine law enforcement looks up to the FBI. I know in
my years as a prosecutor, some of the proudest things was when
officers who had to report to my office, would come and say,
``I have been accepted at the FBI Academy, I am going to the
training program.'' There wasn't a single one of those officers
afterward I didn't go in their office and see on the wall that
plaque. Usually the plaque from there along with pictures of
their family, and actually the two of them together says a lot.
So you understand that you have to give that image, the
image of the best and the most honest. And I think, frankly,
you are going to be helped in that by your own experience and
your own background, which is extraordinary.
And if I might say on a personal note, I think you benefit
by your family, by your wife and your children and your
grandchildren, because ultimately that is the bedrock all of us
can go back to.
So, Mr. Mueller, I appreciate your being here. I wish you
well.
Mr. Mueller. Thank you for your courtesies, Mr. Chairman,
and I can't leave without saying, yes, my wife and my family, I
would not be here without their support over the years and the
reliance upon them. So thank you, sir.
Chairman Leahy. With that final word, we stand adjourned.
[Whereupon, at 12:25 p.m., the committee was adjourned.]
[Submissions for the record follow.]
SUBMISSIONS FOR THE RECORD
Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State
of Delaware
Today, the Committee considers the nomination of Robert S. Mueller
III to be the director of the Federal Bureau of Investigation. I have
met with Mr. Mueller, I have reviewed his record, and while I have
several questions for the nominee I intend to support his nomination.
At the outset, I would like to thank Chairman Leahy for moving so
quickly on President Bush's nomination. I understand the Committee
announced its intention to hold confirmation hearings for Mr. Mueller
the very day his nomination was officially received in the Senate. It
has been the Judiciary Committee's practice over the last
28 years to address the nominations of FBI directors expeditiously.
This is a tradition that reflects the importance of the post to which
Bob Mueller has been named.
Today's FBI is a $3.5 billion, 28,000-person operation--a sprawling
agency spanning 56 field offices, 400 satellite offices, and more than
40 foreign liaison posts. The FBI has 11,400 Special Agents and over
16,400 other employees.
We have entrusted the FBI with vast powers, powers designed to
ensure that the Bureau has the tools and the resources it needs to lead
our Nation's fight against domestic terrorism, violent crime, organized
crime, drugs, and other law enforcement priorities. The twenty-first
century FBI also must be ready to confront new threats: cybercrimes,
health care fraud, environmental crimes, and new terrorist groups that
have the potential to threaten Americans here at home as never before.
While the priorities of the FBI may have grown and changed, its
mission and our high expectations for it remain the same. The FBI must
pursue tough, aggressive law enforcement, but it must also work within
the confines of the Constitution's guarantee of individual liberties
respecting both the spirit and the letter of the law.
Unfortunately, despite the historic drops in violent crime the
country has benefitted from over the past eight years, despite all of
the counterintelligence successes of the Bureau, despite the vast
resources this Congress and the American people have dedicated to the
FBI's success, today's Bureau finds itself awash in a culture of
arrogance, and amongst a populace that increasingly does not trust its
work. Few Members of Congress have been as supportive of the FBI as
have I, but that support becomes increasingly difficult to defend as
more and more management issues come to light.
With that in mind, it is our job in the hearing today to ensure
that the nominee before us embodies the ideals we expect the FBI to
uphold, and to ensure he is the right man for the daunting task of
restoring confidence in the Bureau's operations.
As I have required of all nominees to the FBI Director post, I
believe that the Committee must inquire as to whether Mr. Mueller has:
First, the strong moral character and appropriate personal and
professional background required to be Director of the Nation's
chief law enforcement agency;
Second, the qualities necessary to maintain the FBI's
independence from partisan political influences;
Third, a healthy respect for the individual rights guaranteed
by our Constitution along with a commitment to ensuring the FBI
always respects the rule of law; and
Fourth, an ability to lead and inspire the FBI's thousands of
heroic agents and employees to continue to make the Bureau the
finest law enforcement agency in the world.
During my 28 years in the Senate and my membership on this
Committee, I have come to recognize the position of FBI Director as one
of the most difficult and sensitive within the entire Federal
government.
Those of us committed to aggressive law enforcement must insist on
strict adherence to high standards of conduct. We must insist on an FBI
director who knows how to lead, how to institute reforms when reform is
necessary, how to give our citizens faith that their liberties are
being protected at the same time their laws are being enforced so as to
keep them secure.
Robert S. Mueller comes to the committee with a reputation for
tough prosecution, integrity, and dedication. He has been appointed to
high law enforcement posts by two different presidents in two different
parties--a rare feat. The first President Bush named him Assistant
Attorney General for the Criminal Division; President Clinton named him
to be U.S. Attorney for the Northern District of California. Through
May of this year, Mr. Mueller served as Acting Deputy Attorney General.
Mr. Mueller, you are clearly qualified for this difficult task. I
congratulate you on your nomination, I welcome you and your family here
today, and I look forward to asking you specific questions about your
goals and your vision for the FBI.
Statement of Hon. Mitch McConnell, a U.S. Senator from the State of
Kentucky
I would first like to congratulate Mr. Mueller on his nomination to
be the Director of the Federal Bureau of Investigation. Although
highly-publicized problems at the Bureau over the last few years have
taken some of the luster off its reputation, the FBI remains the
world's preeminent law enforcement organization. Its successes over the
years are both legion and legendary, and its agents and employees are
some of our finest public servants. I am very happy for him to have
this opportunity, and after carefully reviewing his background and
experience, I am confident he will make the most of it.
Now, his job, as he well knows, will not be an easy one. As I
alluded to, Americans have been troubled by the Bureau's high-profile
missteps and mistakes over the last eight years or so. Indeed, even as
Americans hoped the FBI's troubles were behind it, it was reported on
the day he and I recently met that hundreds of Bureau firearms and lap
top computers had been stolen or lost over the last several years. The
number and significance of these incidents illustrate systemic problems
in the Bureau's operations.
But I believe that many of these problems can be solved by strong
and effective management from the top. The performance of Attorney
General Ashcroft bears this out. In his short tenure, he has proven to
be an able manager, being both proactive and appropriately reactive,
particularly with respect to the Bureau's operations. For example, he
created the DOJ's Strategic Management Council to provide leadership on
long-range planning, and he has directed the Council to comprehensively
review the FBI in order to improve its performance. Attorney General
Ashcroft has also, on his own initiative, wisely broadened the
authority of the DOJ's Office of Inspector General to include
investigations of Bureau personnel. While by no means a panacea, this
important change should go a long way to remedying some of the ills
that have plagued the Bureau for years.
Like the Attorney General, I believe Mr. Mueller will provide
strong and effective leadership. Mr. Mueller has both impressive
management and law enforcement experience. He has been a career federal
prosecutor for most of the last twenty-five years, so he is well-
schooled in avoiding the problems and pitfalls inherent in criminal
investigations and prosecutions. But Mr. Mueller has also managed
offices and units of all sizes and complexities, from supervisor of a
Special Prosecutions Unit and chief of a homicide unit, to Chief of the
Criminal Division with two U.S. Attorneys' Offices, to U.S. Attorney,
to Assistant Attorney General for the DOJ's Criminal Division. He even
helped run the Department of Justice itself earlier this year as Acting
Deputy Attorney General during a critical period when General Ashcroft
was by himself, ``home alone'', so to speak.
And to the extent the FBI's institutional culture has been an
impediment rather than an asset, it is important to note that Mr.
Mueller knows the Bureau well, both from his long career as a federal
prosecutor and from serving as liaison between DOJ and the FBI, when he
was an Assistant to Attorney General Richard Thornburgh. But Mr.
Mueller is not ``of"the FBI, and therefore I believe institutional
loyalty will not blind him to making the hard decisions when he needs
to.
In closing, Mr. Chairman, I hope the FBI's best days are ahead of
it. I am optimistic that Mr. Mueller and the Attorney General will work
well together. Both are committed to vigorously enforcing the law
without regard to politics or partisanship. And both recognize that a
well run agency is instrumental to that end. I look forward to hearing
Mr. Mueller's testimony and seeing him get quickly to work. Thank you.
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